“SHOULD WE HAVE A BILL OF RIGHTS?”
| Published date | 01 July 1977 |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02430.x |
| Author | A. J. M. Milne |
| Date | 01 July 1977 |
“
SHOULD
WE HAVE A
BILL
OF
RIGHTS?
”
THE
answer
I
shall give to the question in my title is stated baldly:
“
No, we should not have a Bill of Rights, at least not so long as
we retain our present system
of
parliamentary sovereignty.” In what
follows,
I
hope to develop
a
persuasive case for this answer. In one
respect it resembles the answer given by Lord Lloyd to the similar
although not identical question in an article in this Journal last
year.l He asked
:
“
Do
we need
a
Bill of Rights?
”
and argued that
we do not. The common ground between
us
is that we both think
it would be better not to have a Bill of Rights in the United Kingdom
today. But my way of dealing with the topic is different from his,
which probably reflects the difference of approach between
a
lawyer
and
a
political philosopher.
I
want to raise and discuss certain issues
which he felt able to ignore. That is why
I
have framed my question
in the form: “Should we have . . .
?
”
rather than “Do we
need . .
.
?
”
In particular,
I
want to consider some of the arguments
which might be used by an advocate of
a
Bill of Rights for the United
Kingdom today.
As
I
shall have to mention such an advocate fre-
quently, he will henceforth simply be referred to as
“
the advocate.”
What
I
have to say falls into three main parts. In the first,
I
shall
present the advocate’s case as fairly as
I
can. In the course of doing
so,
I
shall comment briefly on certain of Lloyd’s arguments, In the
second,
I
shall say something about the idea of Human Rights, the
reason for this arising out of the discussion of the first part. In
the third,
I
shall return to the advocate and present my own case
against him.
1.
One objection which need not trouble the advocate is what
may be called
“
the argument from judicial humility.” Lloyd makes
use of it when he refers to a Bill of Rights as
“a
charter for the
judges.” He says that it would confer upon them
“
the important task
of
determining and delimiting the operative values in society
”
and
he expresses misgivings about their suitability for this task. What is
needed, he says, is
“
moral and political wisdom
”
and this
“
is not
a
particular prerogative of the judiciary.” On the contrary, judges
by their training and background,
“
are naturally rendered cautious
and timid rather than imaginative.” Now Lloyd has made it clear
that a Bill of Rights would be
a
Bill of Human Rights and that he
is
in favour of the legal protection of Human Rights. His case is
that in Britain this protection is best provided, not by
a
Bill but by the
detailed legislation of a democratically elected sovereign parliament. If,
however, Human Rights are to be given legal protection at all, will not
the judges have to face the task of determining and delimiting the
operative values in society, since at least according to Lloyd’s under-
standing of them, Human Rights are concerned with such values?
I
(1976)
39
M.L.R.
121.
389
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