Dominic Lawson: How can rights be peculiarly 'British'?

In the real world, which politicians find hard to locate, there's no need for a binding code of responsibilities
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The Independent Online

I had thought that one of the benefits of the departure of Tony Blair from 10 Downing Street would be the disappearance from political discourse of those peculiar compound nouns of his. The most familiar is "schoolsanhospitals", as in "The Tories won't be able to meet their promised public expenditure reductions without cuts in the budgets of schoolsanhospitals." Another favoured Blair compound noun is "rightsanresponsibilities". In Mr Blair's lexicon, a right is never allowed to walk the street unless it is handcuffed to a responsibility.

It was with a sinking heart, therefore, that I heard David Cameron, in numerous interviews over the past couple of days, refer to his plans for a "modern British Bill of Rightsanresponsibilities". We need to prise apart this unnatural hybrid, and ask: just what responsibilities would Mr Cameron's Bill codify? Would it, for example, declare that "All her Majesty's subjects shall volunteer to accompany little old ladies across the road, whensoever a little old lady is seen standing on the side of a road, (especially if the aforementioned road is busy)." What if the little old lady resents the offer of help? Will she then exercise her right to privacy, currently available under Article 8 of the Human Rights Act?

In the real world, a place which politicians sometimes seem to find hard to locate, there is no requirement for a legally binding code of responsibilities. There is only one responsibility, which is to obey the law. Or to put it another way, every law on the statute book sets out our responsibilities. There are rather a lot of them, especially after nine years of New Labour's legislative hyperactivity.

Mr Cameron came up with another extraordinary concept yesterday. In expressing his concern that the Government's decision to incorporate the European Convention on Human Rights had somehow injected a foreign body into our legal system, the Conservative leader proposed that his substitute would incorporate "British rights". I would be surprised if any of the jurists he plans to consult will be able to assist him with such a proposal. What would a code of "British rights" consist of, which would be meaningfully distinct from what John Locke called "natural rights", the basis of the American Bill of Rights, and, much later, the European Convention on Human Rights? In what sense could a "British" right to free speech, property or a private life be defined in a way which smelt unmistakeably of Big Ben, county cricket and the last night of the Proms?

As a matter of fact, we did - or perhaps, do - have a Bill of Rights which is peculiarly British. And it is its Britishness, rather than its universality, which makes it objectionable. I refer to the Bill of Rights of 1689; many of its provisions, which had the effect of removing the Divine Right of Kings, and defended the rights and privileges of legislators against the arbitrary exercise of executive power, were later adapted for use by the creators of the American Bill of Rights, usually termed the Constitution of the United States. (That is why, whatever you might think, George Bush can not do everything he wishes, despite being both head of state and head of the executive branch of government.)

The British Bill of Rights prefigured the right to bear arms which is in the American Constitution. However, our version specified that the right to have "arms for their defence" shall be enjoyed only by "the subjects which are Protestants". Most significantly, the 1689 Bill of Rights stipulated that "Any person reconciled with the see or Church of Rome, or who shall marry a Papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the Crown."

It will be fascinating to see if the Prince of Wales, whose lawyers established that his entitlements under the Human Rights Act overruled any objections under the Royal Marriage Act to his marriage to Mrs Parker Bowles, expects his own sons to give Catholics a wide berth, lest they forfeit their full rights of inheritance; or if Prince William, should he fall deeply in love with a Catholic, invokes the Human Rights Act to demand the overthrow of the Royal Marriage Act, which incorporates the 1689 strictures into British law.

Mr Cameron, in his address yesterday to the Centre for Policy Studies, said that he aimed to develop, with help from men in wigs, a British Bill of Rights which would bring " greater clarity and precision in the law as opposed to vague general principles which can be interpreted in many different ways, which would be more in accordance with this country's legal tradition."

Again, I fear that there will be no jurists able to rise to Mr Cameron's challenge. No code of rights could ever be constructed which would rule out judicial interpretation. I can see why a politician might imagine that laws should not need lawyers to interpret and administer them, but even the most arrogant of legislators must surely understand that the word of Parliament, while itself law, does not have the pellucid clarity of a mathematical equation.

The Tory MP Nigel Evans told the BBC yesterday that his leader's proposals "would not allow the courts to interpret the law badly" as, he claims, is the case with the current Human Rights Act. By "badly" Mr Evans presumably means an interpretation which leads to a result of which he disapproves. As an argument among adults, this really won't do. However any Rights Act is constructed, judges will always interpret it when cases are brought, and their interpretations will neither be entirely predictable nor - self-evidently - pleasing to both sides of an argument.

At the heart of the Tory leader's case against the Human Rights Act is the difficulties he claims it is causing in the "war against terror". This is really odd. Mr Blair's biggest obstacle in his frequently quixotic legislative push to tighten the screws on those suspected of terrorist plotting has been the Conservative Party. Under Michael Howard, the Tories stood shoulder to shoulder with the Liberals against so-called "control orders" - more commonly known as house arrest. Meanwhile David Davies, the shadow Home Secretary, has led the parliamentary opposition to compulsory identity cards, and scuppered the Government's plans for 90-day detention without charge.

Mr Blair would be richly entitled to mock Mr Cameron over this - and no doubt he will - but since the Prime Minister has let his doubts about the effect of his own Human Rights Act become widely known, he now struggles not to appear ridiculous whenever he opens his mouth on this matter.

A similar period of silence by Mr Cameron on this topic would now be most welcome.

d.lawson@independent.co.uk

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