Human Rights Theory and the Bill of Rights Debate
| Date | 01 January 1995 |
| Author | Cyril Adjei |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb01992.x |
| Published date | 01 January 1995 |
January
19951
Human
Rights Theory and the Bill
of
Rights Debate
Human
Rights Theory
and
the Bill
of
Rights Debate
Cyril
Adjei*
This article will argue that jurisprudential perspectives can be useful in providing
practical possibilities for the reform of human rights’ in the United Kingdom. It
will further be argued that a general failure to advert to jurisprudential theory has
contributed to a narrowing of options as to possible reforms by which human rights
can be better protected. Essentially, the reform issue has been dominated by the
Bill of Rights debate. It is not denied that this debate is important but, by applying
certain jurisprudential insights,. it is claimed that a legally binding Bill of Rights
should not be the sole or main avenue of reform and that there is good reason to
doubt whether it would, by itself, be a sufficient form of protection.
The article first highlights the extent to which the Bill of Rights debate has
monopolised both the thinking and practical proposals of those who argue that
human rights are in need of better protection. Secondly, an alternative is presented
to a Bill of Rights by drawing on some jurisprudential insights as regards human
rights. Thirdly, while sole reliance on a Bill of Rights is questioned, a potential and
important role for the device is identified.
The
Bill
of
Rights
monopoly
Much has been written about the Bill of Rights debate over the
25
years or so since
a groundbreaking article by Anthony Lester: and it remains a topical political
issue as well as a subject of much controversy and interest for both commentators
and students of public law.3 Last year also marked the
60th
anniversary of the
founding of the National Council of Civil Liberties (now called Liberty) and the
enactment of a Bill of Rights has become a central objective of that ~rganisation.~
Undoubtedly, an immense debt
is
owed to those who have urged reform in this
direction. They have heightened the awareness of government and citizens on
*Doctor of Law, European University Institute, Florence.
I
would like to thank Luis Maria Diez-Picazo, Avrom Sherr and John Stanton-Ife for their helpful
suggestions and comments.
1
The term ‘human rights’ is used interchangeably with ‘civil liberties’ in this study because the
comments and proposals made here are claimed to
be
applicable to both.
2
Democracy
and
Individual Rights
(London: Fabian Tract
No
390, 1968).
3
As well as constituting a core subject in public law and constitutional law syllabuses, it has produced a
voluminous
body
of literature: for example, Scarman,
English
Law:
7ke New Dimension
(London:
Stevens,
1974);
Wallington and McBride,
Civil Liberties and
a
Bill
of
Rights
(London: Cobden Trust,
1976);
Campbell
(ed),
Do We
Need
a Bill
of
Rights?
(London: Temple Smith,
1980);
Jaconelli,
Enacting
a Bill ofRights
(Oxford: Clarendon Press,
1980);
Zander,
A
Bill ofRights
(London: Sweet
&
Maxwell,
1985);
and Dworkin,
A
Bill ofRightsfor Britain
(London: Chatto Windus,
1990).
4
See
Liberty,
A
People’s Charter: Liberty’s Bill ofRights:
A
Consultation Document
(London: Liberty,
1991).
However, Liberty’s most recent proposal is for a Bill of Rights enacted via an ordinary statute,
which would provide that the Bill would take precedence over subsequent Acts
of
Parliament, unless
there was an express ‘notwithstanding’ clause, along similar lines to that in the Canadian Charter
of
Fundamental Rights and Freedoms
(see
Klug and Wadham, ‘The “democratic” entrenchment
of
a Bill
of Rights: Liberty’s proposals’
(1993)
PL
579.
@
The Modern
Law
Review Limited
1995
(MLR
58:
1,
January). Published
by
Blackwell Publishers,
108
Cowley Road, Oxford OX4
IJF
and
238
Main Street, Cambridge,
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17
The
Modem Law Review
[Vol.
58
human rights and the need to protect them. However, like other aspects of public
law
in
the United Kingdom, human rights protection has traditionally been
approached with little reference to theory? more precisely,
jurisprudential
theories of human rights.6
Illustrative of this approach is the way in which it
is
assumed that there is broad
agreement as to what are human rights, which ones should
be
protected and how
they should be protected. Ultimately, these
are
jurisprudential questions over
which there
are
considerable differences of opinion. The failure
of
various
attempts to enact a Bill of Rights in the United Kingdom and the objections raised
have been centred on one or other of these three issues. In other words, divergent
positions in the Bill
of
Rights debate can be seen to be based on theoretical
grounds, which are themselves sites of disagreement.
What are human rights?
Those who have argued for and against the enactment of a Bill of Rights have come
from all sides of the political spectrum. Thus, some have argued for a Bill of
Rights
in
order to protect individual rights from encroachment by legislation from
the Left7 and,
in
similar terms, some have argued that human rights need to be
protected from the laws enacted by a government of the Right.8 What becomes
clear is that human rights are not a politically neutral category. Put at its simplest,
they mean different things to different pe~ple.~ Some commentators have
recognised this political disagreement and argued for a Bill of Rights based upon a
broad political consensus,1° often by basing the text on the European Convention
on Human Rights.”
5 For recent criticisms and an analysis of this approach to public law, see Loughlin,
Public
Law
and
Political 7heory
(Oxford: Clarendon Press,
1992)
and, as regards English administrative law, see
Harlow, ‘Changing the Mindset: The Place of Theory in English Administrative Law’ (1994) 14 OJLS
419.
6
The term ‘jurisprudential theory,’
in
the present context, refers to what Harlow,
op
cit
n 5, p 422, has
recently called ‘deep theory’: that is, an explanation
of
the function of human rights in the United
Kingdom, which includes the value systems and understandings that underpin them. These value
systems are derived from a ‘background’ political theory, which in this country is one that is strongly
conditioned by a doctrine of Parliamentary sovereignty. My argument is that to improve the legal
protection of human rights in the United Kingdom, resort must be had
to
a ‘deep theory’ of human
rights. However, this ‘deep theory’ is not simply a description, but is also ‘an explicit advocacy’ of a
jurisprudential theory of human rights: a ‘foreground theory’
(ibid
pp 422-423).
7 For example, Joseph,
Freedom Under the
Law
(London: Conservative Political Centre, 1975).
8 Thornberry,
A
Charter
of
Human
Rights
(London: Labour Party, 1976).
9 Wallington and McBride,
op
cit
n 3, p 7, go even further: ‘essentially, a Bill of Rights is one of those
conveniently elastic concepts which mean whatever their proponents want them
to
mean.’
10
Wallington, ‘What
Does
a Bill of Rights Mean in Practice?’
in
Campbell (ed),
op
cit
n 3, p 38, notes:
‘There is in fact a fundamental paradox about Bills of Rights, in that there is little value in introducing
a Bill which serves to accentuate or perpetuate divisions within
the
community
or
between
communities
-
whether it be between the trades unions and the others over an issue like
the
“closed
shop,” or between the communities in Northern Ireland
-
but a Bill
of
Rights that commands united
support is unlikely to extend much beyond a platitudinous affirmation of what is already the position.’
11
See,
for example, Scarman, ‘Human Rights: The Current Situation’ in Campbell (ed),
op
cit
n 3, p 8;
Ewing and Gearty,
Freedom Under Zhtcher: Civil Liberties in Modem Britain
(Oxford: Clarendon
Press, 1990) 263
et seq;
Thornton,
Decade
of
Decline: Civil Liberties in the Zhtcher Years
(London:
NCCL, 1989) 93-96; Zander,
op
cit
n 3,
p
83; Liberty,
A
Bill
of
Rights,
Briefing no 13 (London:
Liberty, 1989) (although, see Klug and Wadham,
op
cii n
4,
for recent proposals); Robertson,
Freedom, the Individual and the
Law
(London: Penguin Books, 1989) 397
et seq;
and the Bill of Rights
in the proposed constitution for the United Kingdom drafted by the Institute for Public Policy
Research,
The Constitution
of
the United Kingdom
(London: IPPR,
1991).
18
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The Modern
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1995
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