The storm of protest that greeted the Commonwealth’s Exposure Draft of the Human Rights and Anti-Discrimination Bill last month was just the latest affirmation that rights instruments, whatever their form, are inherently controversial. We tend to think of Americans and their Bill of Rights as joined at the hip, but let’s not forget that the U.S. Constitution’s framers decided against one in 1787, setting off an intense political debate before the first ten amendments were ratified in 1791. More than two centuries later, bills of rights and controversy still go together. And so it has proved in the United Kingdom, where, just before Christmas, the Commission on a Bill of Rights released its much-anticipated report: two volumes, entitled ‘A UK Bill of Rights? The Choice Before Us.’
The appointment of the Commission in March 2011, ten months after the election of the Conservative – Liberal Democrat coalition government, followed a history of inconclusive inquiries and official reports: a Labour Green Paper in 2007 which proposed developing a British statement of values and a British ‘Bill of Rights and Duties’; an all party parliamentary Joint Committee on Human Rights whose report in 2008 was entitled ‘A Bill of Rights for the UK?’; a second Green Paper, in 2009, on ‘Rights and Responsibilities.’ All were careful and dispassionate in tone, but in the background loomed a long-running, angry debate over the respective rights of prisoners, accused persons, asylum seekers, terrorist suspects and members of minorities, against the rights of the general public. In simple terms, the antagonists saw each other as either too soft or too hard on rights, as bleeding-heart liberals or cruel-hearted conservatives. The UK Human Rights Act (1998), the European Convention on Human Rights and the rulings of Strasbourg provided the libretto.
The Conservative Party’s 2010 Election Manifesto had included a pledge: ‘To protect our freedoms from State encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.’ But the realities of coalition with the Liberal Democrats saw the Commission’s terms of reference confined to investigating the creation of a UK Bill which incorporated and built on the European Convention, while examining the operation of the Convention and consulting widely (including with the devolved governments) and considering ways of promoting a better public understanding of Britain’s rights obligation. Whether the existing Human Rights Act should be jettisoned was a secondary consideration.
In the eyes of many, the task was doomed from the start. The Chair, Sir Leigh Lewis, alone was a self-declared neutral, but the eight commissioners, appointed by the Minister for Justice and the Deputy Prime Minister, personified the lines of division: variously, champions of UK parliamentary sovereignty or the European Court, universal human rights or distinct national rights, together on the same platform. At times at least, each side appeared to believe that the other was getting the more sympathetic hearing. One of the commissioners resigned in early 2012, publicly claiming that the goal of repatriating rights from Europe to the UK parliament had been sidelined. Two members, Helena Kennedy and Philippe Sands, wrote a minority report, ‘In Defence of Rights’, which they re-published in the London Review of Books in January this year, claiming the opposite.
The Commission’s Report begins ominously, with the admission that, unlike many government commissions, the members already had ‘well defined views on the protection of fundamental rights.’ A tone of weariness pervades what follows: two volumes of summaries of conflicting views and surveys of how things are done in other countries. It comes as no surprise that the sole decision was to delay deciding. The impact on the devolved governments of any changes, it was agreed, needed further consideration and nothing could be done before the Scottish independence referendum in 2014. After that, a Constitutional Convention should be held. The Commission itself was wound up. The Report’s title captured the moment: no conclusions, only ‘choices’, and these remained to be made.
The likelihood that time and the referendum result will blur the lines of disagreement seems small. The minority report’s re-publication was accompanied by its authors’ observation that the circumstances of the Commission’s appointment ‘were not auspicious’; the composition (unimaginable in an Australian analogue) – all white, all men except for Kennedy herself, and ‘almost all lawyers and London-based’ – had undermined its legitimacy from the start. The conservative government, Kennedy and Sands wrote bitterly, had always been committed to ‘tearing up’ the UK Human Rights Act, which many Tories saw as ‘little more than a charter for foreign terrorists and local criminals.’
The Report itself is more courteous. The commissioners, it notes, had treated each other’s views with respect, and their most significant source of disagreement was over how ‘creative’ the courts should be in applying existing rights (not a small disagreement, it must be said). Nevertheless, it regretted that public debate had too often been characterised by ‘polarised and sometimes exaggerated polemic’; cases involving extraditions or deportations had attracted particularly high levels of media attention; ‘stereotypes and caricatures’ abounded. In the Report’s melancholic words: ‘Into such waters was the Commission launched.’
The sense of déjà vu is strong, at least for those who took part in Australia’s National Human Rights Consultation and the debate following its 2009 proposal that the Commonwealth should adopt a UK style Human Rights Act. The only real surprise was the relatively small number of ‘substantive’ submissions received by the Commission (around 1,000, out of a population of more than 63 million). Perhaps, however, rather than lack of interest, this may have indicated the complexities involved. Among those who responded to the public consultations, some thought that the UK Human Rights Act should not change because they feared getting something worse; others because they were happy with it; some thought it should be amended to reduce the rights it protects and others to enlarge them; still others thought a British Bill of Rights should replace it for similarly negative or positive reasons; some wanted the Act, or a new Bill, to be supplemented with a special Bill for Northern Ireland, and so on. The permutations were exhausting even to a Bill of Rights junkie.
In the end, the schisms seemed unbridgeable: between those who wanted more justiciable and legally-enforceable rights (socio-economic rights, in particular, such as education and housing) or more powerful judicial review, and those who wanted the courts to play a more restricted role in rights enforcement or to butt out altogether; between those who have faith in the courts and those who have faith in parliamentary processes; between those who wanted greater internationalisation, and those who wanted less.
Three ‘lessons’ for Australians emerge. First, public confusion about what’s at stake in adopting or declining a national bill of rights happens in other countries too. The first task of any government wanting to understand why ‘stereotypes and caricatures’ abound is to recognise this. It was evident to me, as an outsider attending the Charter 88/IPPR Constitutional Convention in Manchester back in 1991 (at which a Bill of Rights was promoted as a panacea for virtually all of Britain’s social ills), that aspirations and legal capacity are not comfortable partners. Then, during a sabbatical semester in London in 2009, as well as on my many visits over the years, I learned that ‘ordinary’ Britons – even well-educated ones – do not understand, for example, the precise differences between the UK Human Rights Act and the European Convention; between the European Union and the Council of Europe; between judicial review of legislation and judicial enforcement of laws; between international law and foreign law.
Analogous confusions can be found in Australia, although there are also important contextual differences. Unlike in Britain, where it has happened many times, Australia has never experienced a direct terrorist attack; Australian law is not subject to the supervision of an extra-territorial court; it is also geographically more isolated. The stakes are higher and the fear more present in Britain. It would be easy to overlook this in assessing the public mind or taking a position on what Kennedy and Sands call the ‘delusional idyll’ of an earlier age of national sovereignty.
Secondly, debates about rights are complicated, because the issues themselves are complicated. Rights, as the famous expression goes, ‘collide’, and so do views about their protection. No one should be surprised. One of the virtues of a democratic system is its encouragement of alternative perspectives and debate. While the issue of whether to renovate or replace the UK Human Rights Act needs to be settled at some time, the UK Commission should celebrate the diversity of views it drew forth (as Australia’s parallel debates have done), rather than regret it.
Thirdly, all those in Australia who, during the debate on the proposed Human Rights Act, worried about our ‘pariah’ status and lamented that Australia, alone in the democratic world, lacked an entrenched bill of rights, should take heart. The British feel similarly about themselves! Despite its long tradition of parliamentary democracy, it sees itself – so we learn from the Report – as standing alone among the democracies without a written national constitution in which rights can be entrenched. Even Australia comes out clean in comparison. Indeed, Australia’s lacuna is scarcely noticeable, at least to the British. Australia is barely on the radar. The Commission’s Report contains a lengthy survey of the constitutions of democratic countries and their rights protection regimes. A team of top UK Post-Graduate students, we learn, was enlisted to help with the relevant research. They would have done better to shoot off a couple of emails. The survey of our constitutional rights is confused and incomplete, and it is almost amusing to find that Australia’s Constitution Act is dated 1960 – not just once, as might happen with a typo, but twice, clearly and unambiguously. If we are fretting about how the world sees us, we can relax. Even the country whose parliament passed our Constitution Act in 1900, hasn’t noticed.
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