UK government launches Bill of Rights drive in move towards written constitution
Bernard Hibbitts at 11:08 AM ET
[JURIST] UK Prime Minister Gordon Brown [official website] Thursday announced the launch of a nationwide public consultation [press release] leading to a new as-yet-undrafted "Bill of Rights and Duties" in what he described as part of a process of "moving towards a written constitution" for the United Kingdom. Brown initially laid out a series of proposed UK constitutional reforms [JURIST report] - including the idea of a rights charter - in July, shortly after taking over from Labour Party predecessor Tony Blair. Speaking at the University of Westminster [transcript], Brown said that the consultation would include "a discussion of how we can entrench and enhance our liberties - building upon existing rights and freedoms but not diluting them - but also make more explicit the responsibilities that implicitly accompany rights" in a changing world where "traditional questions about the freedoms and responsibilities of the individual re-emerge but also where new issues of terrorism and security, the Internet and modern technology are opening new frontiers...". The Guardian has more.
The UK currently has no single overarching constitutional document or rights charter, although its working "unwritten constitution" includes a variety of fundamental statutes such as the Magna Carta supported by a long judicial tradition of protecting civil liberties; the famous Bill of Rights of 1689 [text] actually addresses taxes more than fundamental freedoms. Several British rights groups - including Liberty, the Scottish Council for Civil Liberties and Charter 88 [advocacy websites] - have long pushed for a substantive UK Bill of Rights, and the idea has been politically championed by the Liberal Democrats, although only recently has it gained support among leaders of the leading Labour and Conservative [JURIST report] parties.
Speaking at Cambridge University [transcript] Thursday after introducing the consultation in the House of Commons, Secretary of State for Justice Jack Straw seemed to suggest that a written charter of rights might usefully circumscribe "judicial activism", noteworthy in that the British executive has lately been mired in an ongoing power struggle with the judiciary [JURIST news archive], especially over the legality of various anti-terrorism and security measures:
Over many years there has been debate about the idea of developing a list of the rights and obligations that go with being a member of our society. A Bill of Rights and Responsibilities could give people a clearer idea of what we can expect from the state and from each other, and a framework for giving practical effect to our common values.A British Bill of Rights would also supplement albeit not replace the 1998 Human Rights Act [text] implementing for the UK the European Convention on Human Rights, invoked by British judges in several recent cases putting them at odds with government policy [JURIST report].
However, if specifically British rights were to be added to those we already enjoy by virtue of the European Convention, we would need to ensure that it would be of benefit to the country as a whole and not restrict the ability of the democratically elected government to decide upon the way in which resources are to be employed in the national interest. For example, some have argued for the incorporation of economic and social rights as they have in South African law into British law. But this would involve a significant shift from Parliament to the judiciary in making decisions that we currently hold to be the preserve of politicians including decisions around public spending, and implicitly, levels of taxation.
I entirely agree with the words of Lord Bingham, in his important speech on the rule of law when he said that the importance of predictability in law must preclude excessive innovation and adventurism by the judges, and that is echoed Justice Heydon of the High Court of Australia who suggests that judicial activism, taken to extremes, can spell the death of the rule of law.
Justice Minister Michael Wills has said that a referendum on the eventual implementation of a Bill of Rights [BBC report] or written constitution would be "inevitable" because it would be a "fundamental alteration in the powers of Parliament". Additional proposals being brought forth as part of the Brown government's sweeping constitutional reform package [BBC Q&A] include giving British members of parliament the final say [consultation press release] on sending troops to war and providing a statutory foundation for parliament's right to ratify international treaties, reducing ministerial influence over judicial appointments [Times report; consultation press release] and allowing MPs to question judicial appointees after the fact, and lifting restrictions on protests near the parliament buildings at Westminster.
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