Since 1997, we have been engaged in a process unique in the democratic world of gradually giving ourselves a constitution. We have been transforming a hitherto uncodified constitution into a codified one, not in one fell swoop, but in a piecemeal and ad hoc way.
The Human Rights Act, passed in 1998, lies at the centre of this new constitution. The Act, admittedly, does not offer as high a standard of protection as provided, for example, in the United States, Germany and South Africa where the courts are empowered to strike down legislation contravening human rights. Under the Human Rights Act, by contrast, judges can do no more, if they believe that legislation contravenes the rights enacted in the European Convention of Human Rights, than issue a declaration of incompatibility, a declaration that has no legal effect. It is then up to Parliament to amend or repeal the offending statute or part of a statute by means of a special fast-track procedure if it so chooses.
Although it is not required to do so, Parliament has in fact responded positively to 18 out of the 19 definitive declarations of incompatibility issued by United Kingdom courts up to August 2011. The Human Rights Act, therefore, has given the courts a greater role in the protection of human rights while formally preserving the sovereignty of Parliament.
Britain is of course not alone in giving the courts such a role. Many other democracies have followed a similar path. They have come to appreciate that, however effective the institutions of representative democracy, they are unable to protect small, vulnerable and often unpopular minorities such as asylum-seekers, people charged with serious crimes, or prisoners.
But the Human Rights Act has come under criticism. Jack Straw, who as Home Secretary, was responsible for steering the legislation through the House of Commons, has said that many of his constituents in Blackburn regarded it as a `villain’s charter’. He did not say, as was suggested in some press reports, that it was in fact a villain’s charter or that he himself believed that it was a villain’s charter, but that it was perceived as such.
Partly because of this public perception, some have called for a `British Bill of Rights’. The government has set up an independent Commission on a Bill of Rights to examine its practicality and desirability, and also to reconcile differences of view between the coalition partners. For the notion of a British Bill of Rights is ambiguous. Some hoped that it could be a Human Rights Act minus, that it would enable government more easily to punish criminals or deport suspected terrorists. But the effect of a Human Rights Act minus would be that more cases would go to the European Court of Human Rights at Strasbourg, since they could no longer be adjudicated in Britain. For the Human Rights Act did not create extra rights: rather it patriated rights so that matters formerly adjudicated at Strasbourg could now be adjudicated in Britain by British judges. In the words of the government White Paper preceding the Human Rights Act, it `brought rights home’.
Some believe that a British Bill of Rights should offer extra protection, that there should be a Human Rights Act plus, containing new rights not included in the European Convention. The Convention was, after all, drawn up in 1950. Were it to be drawn up today, it would no doubt include rights which were not thought of then – for example, a right to health-care, a right to equality, and perhaps various social and economic rights.
The report from the British Academy, Human Rights and the UK Constitution, however, points out that any expanding human rights protection would extend the role of the judiciary in protecting rights, and poses problems for the quasi-federal constitution of the United Kingdom. For, although human rights matters are reserved to Westminster, the devolved bodies would almost certainly wish to decide for themselves what extra protection might be needed in Scotland, Wales or Northern Ireland. There would be a particular problem in Northern Ireland, where a separate process has been underway for over a decade.
But those who seek to expand human rights protection argue that it would enable more people to feel that they `owned’ human rights. At present, as Jack Straw implied, many believe that human rights have nothing to do with them. Few of us, after all, believe that we ourselves will ever be unjustly suspected of being terrorists or criminals. With a Human Rights Act plus, by contrast, rights, such as the right to health-care would apply to a much broader swathe of the population; and so, paradoxically, such an Act might help in building a political constituency willing to defend the rights of vulnerable minorities. That is the case for adding extra rights to the Human Rights Act.
It is fundamental to the defence of human rights that there is respect for them throughout the community. For, in the last resort, human rights depend not upon courts, judges or legislation, but upon the public.
In a book published in 1925 entitled The Usages of the American Constitution, the author, H.W.Horwill, tells the story of the Holy Trinity Church in Guildford. On the site of this church, apparently, was an earlier building destroyed in 1740, when the steeple fell and carried the roof with it. One of the first to be informed of the disaster was the verger. `It is impossible’, he exclaimed,’ for I have the key in my pocket’!
The Human Rights Act is the key. But it will not of itself prevent the fall of the steeple. Only a vigilant public can do that.
On 27 September the British Academy Policy Centre published Human rights and the UK constitution, which evaluates the workings of UK human rights law and explores how a new Bill of Rights may affect the protection of human rights in the UK