“If a place adult Bill of Rights was adopted, cardinal rights and freedoms would be afforded better protection.”
Even prior to re-entering office in 1997 and supervising the passage of the Human Rights Act 1998, the Labour Party was constitutionally committed to the passage of a Bill of Rights [ 1 ] :
“The incorporation of the European Convention on Human Rights is a necessary first measure, but it is non a replacement for our ain Bill of Rights…” .
In the period that has elapsed since the 1998 Act, the political jussive mood to accomplish a “home grown” Bill of Rights appears to hold dwindled [ 2 ] . Lord Scarman in the Preface to Zander’sA Bill of Rights[ 3 ] points out:
“Laws for the protection of the rights of persons are of small value to the citizen if he can non implement them straight in the tribunals of his ain country.”
Of class, since that was written, the statement that the enforcement of human rights in the UK required a trip to Strasbourg has mostly disappeared but there remain cardinal concerns that the incorporation of the ECHR will turn out a alleviant instead than a Panacea and will deflect attending from the demand for domestic steps to enshrine cardinal rights. It is submitted that a Bill of Rights is required for two grounds: foremost, it is necessary clearly to specify the types of rights and freedoms which should be accorded particular protection ; 2nd, holding done so, it is necessary to incarnate them in a papers which has peculiar legal position and precedence. Oliver and Drewry [ 4 ] take the position that the 1998 Act achieves neither of these aims ; while “an of import measure in that direction” , it fulfils neither of these aims to the full. What is required is a Bill of Rights with full constitutional authorization.
A major obstruction confronting the execution of a UK Bill of Rights is complacence. For centuries, our citizens have taken a pride in a system of democratic authorities which has been exported all over the universe without the demand for a written fundamental law. This type of “if it ain’t broke, don’t hole it” outlook ignores the considerable farther advantages which such an instrument might confabulate. While it is argued that the acceptance of such a measure would interfere with the philosophy of separation of powers in that the reading of it would confabulate upon the bench a map akin to statute law, it can barely be suggested that the present state of affairs in which legislative and executive power are controlled by the procedure of judicial reappraisal ( which has evolved at common jurisprudence and has no legislative foundation ) is more satisfactory.
As has already been seen with the debut of direct enforceability of the ECHR, the being of a Bill of Rights would raise public consciousness of rights issues. In common with the American Constitution, it could be taught in schools and breed a sense of civic rights and duties which is soon missing. Citizens would therefore go sceptered by readily accessible and apprehensible methods of implementing their rights against those who might improperly utilize power over them. Most significantly, the Bill would move as a benchmark against which the actions of authorities could be challenged. The thought that current statute law reflects the will of the people is a false belief. It is often the instance that the political party keeping a bulk in Parliament has been elected by a minority of the population ( and, as a consequence of the “first past the post” system ) even a minority of the overall ballots cast. By convention, that party will however organize the authorities of the twenty-four hours. Thereafter, the system of Cabinet authorities ( dominated in any event by Prime Curates who are less “first among equals” and progressively presidential ) and party tanning consequences in the transition of statute law such as that in regard of terrorist act for which the popular authorization is questionable to state the least.
A farther important advantage would lie in the unifying and codifying consequence which such a Bill would hold upon the present hotch-potch of equality and favoritism statute law. At present, prohibition of favoritism is to be found in a assortment of steps which have been introduced over clip such as the Sex Discrimination Act 1975 and the Race Relations Act 1976. More late the Employment Equality ( Religion or Belief ) Regulations 2003 [ 5 ] and the Employment Equality ( Sexual Orientation ) Regulations 2003 [ 6 ] have been introduced to battle favoritism on the evidences of spiritual belief and sexual orientation. A consideration of these two Statutory Instruments reveals the absurdness that each is couched in virtually indistinguishable footings to the other but however has had to be individually enacted. A Bill of Rights could supply for the indispensable elements of equality from which the rights of all minorities that are discriminated against could so deduce. This would guarantee that – unlike at present – statute law and instance jurisprudence to battle favoritism on such evidences as disablement and age would maintain gait with the more traditionally accepted immoralities of racial and sexual favoritism.
Foremost among the voices that continues to name for a UK Bill of Rights is Liberty which has published a bill of exchange measure [ 7 ] which, while admiting the ECHR besides draws upon the 1966 United Nations International Covenant on Civil and Political Rights. Liberty argues that a Bill of Rights should be enforceable by persons against all agents of the province and this would therefore include the bench every bit good as national and local authorities. The present job with the Human Rights Act 1998 is that it is possible for the authorities to besiege its intended consequence by go throughing statute law which is in struggle with the ECHR. A Bill of Rights, by contrast, would bask overruling position. As in the instance of the USA Constitution, measures which violated the commissariats of the Bill would be struck down as inferior statute law. This would rid of the present tenseness between enforcement of rights under the 1998 Act and the redresss antecedently available by manner of judicial reappraisal. Finally, the often expressed concerns that parliamentary sovereignty would be undermined by the being of such a Bill can be demonstrated to be misplaced. Unlike the 1998 Act which derives from an external European Convention, the Bill of Rights would be the creative activity of Parliament itself. Its infliction and subsequent attachment to it would function to heighten instead than decrease the authorization of Parliament.
In decision, hence, the transition of the Human Rights Act 1998 may be described ( nevertheless anomalous this may look at first sight ) as a retrograde measure for the cause of the passage of a Bill degree Fahrenheit Rights in this legal power. While the execution of the European Convention should be lauded for the focal point that it has attracted to the topic of single rights in relation to the possible abuse of power by the province, the enticement is now for those important participants in the political game who antecedently espoused such constitutional reform to see the issue as mostly excess. It has been demonstrated that this is non so and that the demand for a comprehensive codification remains every bit acute as of all time non merely farther to heighten the protection of human rights introduced by the impact of European steps but besides to supply a unifying and consolidating force in a legal power which has relied for far excessively long upon the development of common jurisprudence rules and redresss to safeguard the autonomy and other freedoms of the person. A Royal Commission should be tasked with taking forward to work commenced by groups such as Liberty in order to implement the fusion of a broad scope of rights under a individual, comprehendible and accessible codification of rights.
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Labour Party,A New Agenda for Democracy: Labour’s Proposals for Constitutional Reform, ( 1993 )
Liberty,A People’s Charter, Liberty’s Bill of Rights, ( 1991 )
Liberty,Liberty Bill of Rights, ( 1995 )
Oliver, D. & A ; Drewry, G. ,The Law and Parliament, ( 1998 )
Wadham, J. ,A British Bill of Rightsin Blackburn, R. & A ; Plant, R. , ( Eds. ) ,Constitutional Reform: The Labour Government’s Constitutional Reform Agenda, ( 1999 )
Zander, M. ,A Bill of Rights?, ( 4ThursdayEd. , 1997 )