Does Britain need a new Bill of Rights? This is a question that very quickly becomes a different question: “Should the state impose wider obligations on its citizens – broader than those set out in general law?”
The answer to these questions, according to Conservative voices pressing for a “United Kingdom Bill of Rights and Responsibilities” is “Yes” – but only as long as the second question is answered “Yes” first. Rights, it is said, must be balanced by obligations to the extent that, arguably, they cease to be “rights” at all. Instead they become citizenship privileges, accessible only to those who meet certain criteria of moral goodness.
In 2014 the Conservative Party intended to publish its UK Bill of Rights, a new constitutional “settlement” that it is said will “detoxify” the human rights issue. In the event it did not happen, but it is worth looking at an earlier attempt to create a Conservative Bill of Rights – the private member’s Bill promoted by the lawyer Charlie Elphicke in 2012. Human Rights Act 1998 (Repeal and Substitution) Bill – publications pdf
This might have been the basis of the new official Tory version (Elphicke is on the committee working on the document) – and it is rather revealing. Not only does it seek to dismiss the influence of the European Court of Human Rights in British courts, it creates a utopian vision of a Conservative society in which the people are required to measure up to standards set by the State and the State can, in certain circumstances, avoid human rights obligations to the people. Those rights become contingent rather than absolute.
This new concept of a Bill of Rights is far from the original 1689 version – a set of rights and protections that the people had against the Executive (ie the Government or at that time the Monarch). But it illustrates the problem with many such attempts to write down the constitutional underpinnings of any state – that they say a lot about current political obsessions rather than take an objective view of the likely developing needs of a particular nation.
The intention of the Conservative version, based on what we know of Elphicke’s, is to select a series of items that constitute “British values” – values that will be resistent to the claims of “human rights” made by individuals against the State and its offshoots. We return to this issue below (see “Moral obligations”) but first must look at the Elphicke view of the rule of law.