The Ranting Kraut

19.3.2006 – 27.9.2010

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:

Article 5:

[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

honor.

(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.

2 Responses to “Does the UK need a Bill of Rights and Responsibilities?”

  1. Kevyn Bodman said

    Thank you for this post and the preceding one. Very interesteing and informative.What follows is quite a bit off-topic, I’m afraid.
    I’ve been a visitor to various sites dealing with authoritarianism/libertarianism over the last year or so.And The Guardian cif pages, especially if Henry Porter is on. It can be fun to read Monbiot and Toynbee too, it’s a different type of pleasure.
    A friend tells me that Fjordman is also very good on the distinction between positive and negative rights that the US Bill of Rights and the German Basic Law deal with.(Or maybe he calls them freedoms, I can’t exactly recall.)
    There are sites out there that are serious and some are humorous, a few seem vitriolic and one at least can be all these and also at times playful.
    Some still refer to old left/right differences, but I was intersted to see today that Archbishop Cranmer has posted a video of Tony Benn speaking about the need for a referendum on the EU ‘reform treaty’ and the idea that legislators must return the powers to the people *undiminished* at election time. On the left/right split His Grace and Mr. Benn would not be allies.
    So perhaps the desire to take back (?) some of our powers from the State is an idea whose time has come??? On both sides of the old divide??
    I spend time nearly every day chatting with friends and colleagues about the growing interference by the State into our lives.
    Various sites have similar themes.
    But nothing is changing. After one year reading and commenting I am getting perplexed, how can we change things?
    One of my friends says the time is coming when the people will have to start throwing bricks through windows; 400,000 marchers didn’t prevent the ban on hunting with dogs, 1,000,000 marchers didn’t stop the war on Iraq, so peaceful protest seems not to work.
    But I don’t want to throw bricks; I’d rather rely on the power of reason.
    Is there any point in standing for Parliament? Are there freedom-loving candidates out there?
    I’m not a classic libertarian; my views on immigration rule me out on that, I think.
    But in simple terms I’d advocate:

    scrapping the ID card and the database state

    holding a referendum on continued UK membership of the EU (I’d like to get out)
    as well as a referendum on the reform treaty in case the nation wants to stay in.

    withdrawing our forces from Iraq now
    reviewing our presence in Afghanistan

    solving the West Lothian question by either abolishing the Scottish, Welsh and Northern Ireland governments or, just as feasible, giving England its own Parliament and dissolving the Westminster government.(That one won’t be an easy sell.)

    imposing a minimum 5-year moratorium on non EU immigration

    ending all concessions to any religious groups.

    legalising of all drugs (readers of this site might be ahead of the curve on this one)

    We know we can’t trust Brown; we strongly suspect we can’t trust Cameron.
    Is there an alternative? Can we bring about change, or are we limited to stroking each other in cyberspace? If the latter, it’s pretty pointless, isn’t it?

    If I remember correctly ‘Philosphers have succeeeded in interpreting the world. The point, however ,is to change it.’ If you know who said it you might be surpised to see him quoted here. If you don’t know who said it, it doesn’t matter. He was right on that, wasn’t he? Even though his ideas an economics and historical inevitability were wrong and the direction he took was wrong, the point is to change the world.
    Self-referential and cross-referential websites are not enough; so what is to be done?

    fondoffreedom@hotmail.com

  2. Thanks for your comment. Needless to say, I agree with some of our views and disagree with others. I also understand your frustration, although throwing bricks through windows is almost certainly a bad idea: they are doing plenty of that on the continent, and they don’t have freer countries as a result. There are also two thoughts that should give rise to hope:
    – In his essay “The Intellectuals and Socialism” (pdf), Friedrich Hayek argued that profound political changes are prepared over time by those who decide what is discussed in public and which direction this discussion takes. Hayek argues that those who lead this discussion are intellectuals –second hand dealers in ideas like journalists, academics etc. Politicians are then effectively left to decide on the details of implementation, since the preferences of the electorate have effectively been moulded by public discussion.
    – Richard Dawkins, on the other hand, has contributed the concept of a meme. Meme theory may not qualify as a discipline in its own right, but in the present context this hardly matters. What matters is that certain ideas, or memes, get adopted almost unconsciously by a small number of people, and then spread much like a virus spreads.
    Now combine Hayek’s observation on the role of intellectuals with Dawkins’ meme theory and the result looks quite encouraging. The ranks of the second hand dealers in ideas have been joined by part time bloggers or even those who join blog discussions. Blogs can introduce memes into the discussion by simply addressing some questions that the mainstream media ignore or by viewing things from a perspective which the MSM would not consider. If you doubt that this has an impact just keep an eye out for the growing number of columnists who whine about competition from bloggers –well, they usually complain about declining journalistic quality, but competition is what it comes down to. Or consider the complaints from politicians about the relentless criticism and scrutiny from the web.
    Given the decentralised and interactive nature of this online discourse, the result is almost impossible to control or predict. Even a small blog or website can have an impact if it contributes an original thought or highlights an item of underreported news which then spreads.
    So, while cyber-activism need not be where it all ends, those discussions may well have an impact over the long term. After all, a lot of people are dissatisfied with mainstream politics in general, and with government intrusion in particular.

Sorry, the comment form is closed at this time.

 
%d bloggers like this: