A simple question to Tories and to New Labourites could be “What precisely do you want to do away with that is in the 1688 Act?” (needs to worded slightly differently in Scotland because they did their equivalent a year later).

If they want to kick out the historic foundations of out rights, the yshould be made to say so.

Hang on a second here, what historic foundations of our rights?

The freedoms afforded in the English Bill of Rights are…

Freedom from royal interference with the law (the Sovereign was forbidden to establish his own courts or to act as a judge).

Freedom from taxation by royal prerogative, without agreement by Parliament.

Freedom to petition the Monarch.

Freedom from a peace-time standing army, without agreement by Parliament.

Freedom to have arms for their defence, suitable to their class status and as allowed by law (only for Protestants).

Freedom to elect members of Parliament without interference from the Sovereign.

Freedom of speech in Parliament, in that proceedings in Parliament were not to be questioned in the courts or in any body outside Parliament itself (i.e. parliamentary privilege).

Freedom from cruel and unusual punishments, and excessive bail.

Freedom from fines and forfeitures without trial.

After which everything else was about getting shot of James II and preventing Catholics from becoming the monarch.

As I said in the article, the Bill of Rights is far more concerned with the rights of parliament than with civil rights.

If you can fill out what you think the Tories and Labour are going to put in their proposed bills of rights, then they can’t be that vague. Furthermore, as I would have thought you’d know, it’s not like bills of rights are not going to require interpretation: you can call for clarity all day long, but that doesn’t make it any less true that the US Bill of Rights has for example, at various times, failed to protect African Americans against being systematically disenfranchised and prevented the federal government from regulating any economic activity which did not cross state boundaries. That granted, vagueness is hardly a crime in the expression of hopes about what would go into a bill of rights: the problem is that the hopes Labour and the Tories have expressed about what would go in is that they’re pieces of illiberal pandering to the redtops, not that they’re vague.

As for the rhetoric about a bill of rights being a contract between state and citizen: where does the state get the right to sign contracts; in virtue of its representation of its citizens, surely, meaning that a bill of rights is, as Rousseau well saw, a contract between citizens. This doesn’t make Jack Straw any less idiotic, by the way.

On the interpretation thing, it comes down to a matter of whether you prefer that the law should be interpreted by judges using principle drawn from the collective wisdom of something over a thousand years of common law or on the whims of politicians desperate to placate the tabloids.

Of course, the common law doesn’t have answers to every question but, by and large, it gets things right more often than it gets them wrong and successfully corrects any errors that creep in, even if it sometimes takes a while to get around to some of them.

That said, what is important in all this is, first, that we have a clear statement of rights and a clear understanding of whether those rights are unqualified, as in the case of the right not to be subjected to torture, or qualified as in, say, the right to a private and family life that, in ECHR, comes packaged with a list of broad circumstances in which the state can infringe those rights in pursuit of broader interests.

Second, there should be clarity in who interprets those rights and under what terms.

In the US, that’s fairly straightforward because, as long as its within their jurisdiction, its the Supreme Court that does the interpreting using common law principles and past precedent and its that way because the US has a constitution which provides for a separation of powers between executive, legislature and judiciary and which makes the Supreme Court the arbiter of all constitutional matters other than where the constitution, itself, is subject to amendment.

In the UK, we don’t have the same separation between executive and legislature and although the judiciary in independent, parliament is sovereign and statute law takes precedence over common law if the two come into conflict. Although we have the Human Rights Act, that Act only has value because its coupled to ECHR and the European Court of Human Rights and bound to an international treaty that places obligations on parliament where its wishes contravene the rulings of the highest court.

Without that structure, any time parliament didn’t like an interpretation handed down by our our courts it could simply change the law to force the courts to submit to its preferred interpretation, which is part of where both the Tories and Labour are trying to get to with their respective bills, and its that that we do need to avoid.

As for contracts between state and citizen, for the purposes of the social contract theory the state is treated as a de facto public entity in its own right although one that has no intrinsic rights of its own, only those that may from time to time be granted to it by its citizens.

In that sense a Bill of Rights is not a contract between citizens – if you leave a comment over at MoT and I decide to delete it just because I feel like it then I’ve not violated your right to free speech because I’m under no express obligation, as a private citizen, to observe that right – but a contract between citizens and the state, which is itself, no more than a public manifestation of the body politic.

That’s the theory, anyway, although in recent years its all got out of kilter, especially under New Labour, who appear to have the idea that the state in not just an abstract political entity but a ‘person’ – in the same sense that a company is a person in law – and therefore entitled to lay claim to having rights of its own.

To be honest, its just easier to talk in terms of contracts between citizens and the state as most people get the idea well enough that you don’t have to keep explaining all the nuances.

Rob

The US Constitution specifically says that the Federal government can only regulate interstate commerce. It seems a bit odd to complain that the Bill of Rights (which is about individual freedoms) doesn’t say otherwise.

Well, what the parties are proposing is just another Act of Parliament. Which the judges will intepret. So I don’t see what’s new – unless they try to give in super-Parliamentary status, e.g. by a referendum. Which they won’t.

At bottom there is of course a conflict between liberty and democracy. The management of that conflict will always be uncertain and fallible.

So far, so little cause for concern.

But we do live in a time where not only is democracy manipulated (when was it not?) but also liberty is despised, by politicians and public alike. Not only in this country: the Swedish Parliament has just passed a bill legalising internet snooping and wire-tapping for any purpose or none. If the Swedes can do it, anyone can. And of course the Chinese are engaged in the most significant social experiment of our times: seeing if a capitalist society is consistent with the continuing suppression of both liberty and democracy. Does anyone here seriously doubt that politicians around the world, of all major parties, in or out of government, aren’t keeping their fingers crossed that they succeed?

I don’t see that the historic foundations of our society are so easily washed out of existence as some may wish, nor do I think it is necessary or at all desirable.

The precedents of law still ocurred for the first time when they did and the political arguments over the underlying principles of these and new laws will continue to rage throughout contemporary society. I’d much prefer that we learnt our living, reasoning constitution through engagement with the debates than were taught dependence on documented doctrine by rote.

There is no conflict between liberty and democracy, just an open question about how they reconcile and combine to best effect with regard to changing conditions.

It is ideas we should value over words, because while every word has a price, ideas are ransom that can neither be sullied nor sold.

Actually, about the only piece of social contract theorising from the canon I can think of off the top of my head where the contract is made with the state is Hobbes, because it requires that the state exist in order to enforce the contract it’s a beneficiary of. Rousseau, in particular, but also Locke, is quite insistent that a people must have come into being before a contract with anything like a state can be made, and that it is that agreement which we get rights from. Otherwise, Locke would find it difficult to explain why a people can overthrow their government without destroying various conventional property rights and so on amongst themselves: those must have an existence separate from that granted by the contract setting up the state. if they didn’t have such an existence, he’d be left in the Hobbesian situation where any one person can resist the state, but no organised resistance is ever legitimate, because it collapses the basis for any social order at all, dumping us back in a state of war of all against all. And presumably the point about comment deletion is that no-one thinks my rights to freedom of speech extend to having my words published permanently by someone else simply because I’d like them to be, and has nothing to do with whether or not my rights are against you or against the state. But that and the points about social contract theory are by the by.

The more substantive point is about a) whether constitutionally enshrined rights should be clear or not and b) whether it’s best to have the judiciary or elected politicians interpret those rights. My claim on a) is simply that in the absence of a very long and totally unwieldy list – which in effect is what common law precedent aims at being – nothing is clear, because exercises in balancing – perhaps demarcating would be better – various rights are going to have to be done: exactly how free should my speech about other people’s private lives be, for example? What, precisely, counts as torture? You can’t wish the politics out of this: it’s a question of where it’s going to get done. On b), I’m not sure that you’ve separated the thought that the judicial, legislative and executive powers should be separate – that is exercised by different people – from the thought that at least the judiciary shouldn’t be elected. What I think you’re calling for is a judiciary independent from any political pressure at all. I doubt that that’s possible. Even the US Supreme Court has overturned precedent under electoral pressure. Further, I don’t think it’s obviously desirable. The US Supreme Court has not only failed, repeatedly, to uphold the kinds of liberal values we’d like it to, but has repeatedly stymied them. It is not obvious that small groups of elderly white men are noticeably more liberal than elected politicians (I know that there are both women and non-whites on the Supreme Court: it’s rhetoric). Finally, I’m just not convinced that giving up on Parliamentary sovereignty is a good idea, for similar reasons: I would like to see an argument that the legalisation of politics in the US has been on balance a force for good.

Two thoughts:

The task of drawing up the Bill of Rights absolutely has to be handed over to academics, who can look at Bills of Rights across the world and what they have meant in practice. Of course, there’s no getting around the politicians getting the final word on the most controversial parts (subject to popular approval). But I can’t imagine a worse solution than the Cabinet sitting around, chewing on pencils and trying to think up rights to give to us.

If it is to work as a Bill of Rights, it cannot be modifiable by mere Act of Parliament. The only principled way to do it would be to have it amendable by referendum only, somewhat like the Irish model. Moreover, it should be possible to initiate a referendum with sufficient support without the assent of Parliament or the Government. Only that way can the Bill of Rights succeed as a method of binding the Government and holding it accountable. I also think that for legitimacy’s sake, it needs to be implemented by an approval referendum.

Anthony Barnett is a good person to ask on the B Bill of Rights. I’ve been attending a series of seminars on the issue recently… and its still not clear what the govt wants from it. As it is, it looks likely to be quietly sneaked in like the HRA was.

Secondly, David Davis doesn’t exactly inspire me with confidence on what his stance is given that video above. He’s all over the place.

As a life-long student of Thomas Paine, I’ve been astounded at how many people have chosen to peg him as “anticident” to their views, no matter how absurdly. In most cases, they are projecting false dichotomies or anachronous issues onto a man of the 18th century. The very concept of “negative and positive rights”, which is the offspring of power struggles a,pmg twentieth century statist and totalitarian ideologists, would have been incomprehensible to him. What he meant by “rights” is “that which is due unconditionally, without exception, without conditions, without bargaining” — you can not be “given” rights, for they are embedded in nature, like the value of pi. Nor can they involve any “duty” than your moral duty to respect them in others. The notion that “rights are balanced by duties” is a twentieth-century statist idea, based on the belief that human beings are domestic animals possessed by the State. Nothing could be more alien to Paine’s thought. Nor, in his mind, did Paine confuse Rights with any selectively desired objective. Because he thought it would be nice to have smokeless candles, and that smokeless candles were desirable, and that everyone would be better off with smokeless candles, he would never have said something like “smokeless candles are a right”. He would have thought that completely idiotic. He did, however, patent a smokeless candle.

Phil:

I fully appreciate what you’re saying.

In this case, it was necessary to frame Paine in terms of negative liberty, which is a modern idea, albeit one with solid roots in the 17th and 18th century, not least by way of Locke, and close enough in spirit to Paine’s view of the nature of rights to be comprehensible, in order to point out how Straw is attempting to weld his own view of positive liberty and communitarian duty where it essentially doesn’t belong.

Sad to say its too often the case that modern politician treat political philosophers as something a finger buffet when speech-writing.

Just a few things to add to this summary of where the Bill of Rights debate is at.

I went to the Compass conference last week and attended an Unlock Democracy seminar at which Michael Wills, Minister for Constitutional Renewal, was speaking. I asked him whether including “responsibilities” in the Bill wasn’t really about disciplining the population (the USSR constitution contains the responsibility to “confront anti-social behaviour at all times” or some similar formulation). He assured me that it wasn’t about this at all and impied it was a tactical move to keep the Daily Mail etc onside by emphasising community and not just the indvidual etc. When I asked for a concrete example of a responsibility that might feature he couldn’t give one. He did, however, make clear that the Bill would be HRA-plus; it may contain additional rights eg trial by jury. He also (rather disappointingly) said it would not threaten “parliamentary sovereignty.” My guess is it will be a normal parliamentary bill like the HRA; not entrenched and no “strong-form” judicial review as in the US.

On socio-economic rights I think that you’re right that what the Government has in mind are non-justiciable “aspirations” rather like the Irish or Indian constitutions (South Africa is, I believe, the only country with justiciable socio-economic rights), but I disagree that this will be a meaningless exercise. Don’t underestimate the role of symbolism.

I also asked Wills who was going to be drawing up the Bill of Rights. He said that it would be done following ad hoc consultations across the country on different aspects of the Bill. Apparently these would not be pathetic talking shops like the “citizens juries” (though I doubt their deliberations will have any binding force).The plan is that the “British Statement of Values”, which will be drawn up following a citizens’ summit, will form the preamble to the Bill of Rights and inform these debates and consultations.

I think you may be slightly unfair on the Tories. Don’t forget, it is not just they who are calling it a _British_Bill of Rights; it is the Government too. In fact Britishness is an important part of Brown’s rationale for the whole project. If I was to put money on it I’d say a Tory Government won’t repeal the HRA despite Cameron’s threats in 2006.They have also made the rather intriguing suggestion that a BofR could be entrenched by amending the Parliament Act, giving the House of Lords the role of constitutional watchdog (or rather keeping the Lords in this role but giving the dog some teeth).

Writing this now I think it might have been helpful if I had just blogged it at OurKingdom. …We’ve been following the debate quite closely.

http://www.opendemocracy.net/ourkingdom

When I was working at Liberty, back in the mid-1990s, we called for incorporation of the ECHR as the first step towards a British Bill of Rights. My predecessor there, Francesca Klugg, actually drafted a Bill and we had a lot of discussions about its content. She has taken this work a lot further since.

A slightly alternative approach is to take international human rights law as the starting point. I wrote a short pamhlet when I was at Amnesty, with Keir Starmer, which Amazon still appear to have in stock (although it is 10 years old now). It was done as a bit of agitprop, with an eight point programme which it is quite interesting to read with the benefit of hindsight.

http://www.amazon.co.uk/Signing-Human-Rights-International-Standards/dp/1873328303/ref=sr_1_10?ie=UTF8&s=books&qid=1214253578&sr=1-10

I think the key to this discussion is that any Bill of Rights must be consistent with the minimum standards of international human rights law. Unity s right, though, that it should also be seen as part of an overall constitutional settlement and social contract.

Here in Canada, we have a “Charter of Rights” — but in keeping with the fundamentally anti-rights nature of contemporary intellectual life, it was freighted with a clause explaining that it could be ignored or contradicted if politicians wanted to… making it into a travesty. Nevertheless, it has been used successfully by some Canadians to defend themselves against the arbitrary authority of the State. It has shifted the focus so that the government has at least had to justify itself to the public when it has been seen to be overzealous.. Charter challenges have proven to be taken seriously by the courts.

While the International Declaration of Human Rights is a flawed document, with considerable confusion about the nature of rights, it has also turned out to be useful to some of the oppressed in the world… it is at least something to point to when you are being victimized and the rest of the world conveniently ignores your plight by mouthing platitudes about “cultural relativism” and “sovereignty”. In their hearts, people know that torture, slavery, and dictatorship are not right in a fundamental, universal way. The Declaration (originally conceived of by a Canadian, btw) at least gives them a shred of hope.

A Bill of Rights, even if flawed, may be similarly useful to Britons. Remember the scene in Terence Rattigan’s “The Winslow Boy”, where Magna Carta is invoked?

If a Bill of Rights is not going to make us better off than the ECHR / HRA (hell, the HRA isn’t ‘as good as’ the ECHR) then I cannot see any point in it from our point of view and, let’s face it, Labour’s Bill of Rights isn’t going to make us better off. It is all about giving the Labour Government more kudos and more power. It is about expediency.

We will have some non-justiciable clauses. Again, can’t see the point in those.

We may have some responsibilities. There has been a lot of handwaving – Straw says he would find it “very easy” to explain what these are to any of his constituents but has so far failed to give any examples, except for the following, which is hardly concrete:

In the law children and parents have various rights of education. What is also in the law, and we have tightened this, is responsibilities on parents not only to make sure their children go to school, but all sorts of more explicit responsibilities. All parents do not realise this. There is text used in other countries that there is a case – I put it no higher because this is a developing process – for saying to parents yes, you have rights and so have your children but you have also got responsibilities and this is what it says and this is what through representatives and debate has been agreed by the British people.

The Government also wants some rights to be contingent on the discharge of one’s responsibilities.

So basically we will probably be worse off with a Labour party Bill of Rights. I have yet to look at any Tory or LibDem suggestions so I won’t comment on those.