As previously mentioned, Cameron and many others have posited a new Bill of Rights and the abandonment of the Human Rights Act which many have argued does not provide clear articulation for the rights and responsibilities of Britain’s citizenry, and fails to address issues specific to counter-terrorism. Erdos, in his 2009 article, “Ideology, Power Orientation and Policy Drag: Explaining the Elite Politics of Britain’s Bill of Rights Debate” posits that the formalized legal strength of the Bill of rights is contingent particularly on the legalities and the legal status of the rights it establishes; especially as it relates to whether the rights are considered ‘supreme’ against other law, and the magnitude and degree to which judicial decision and the instrument made under it are established against repeal (Erdos, 2009).
Britain is said to have a history of distrust with regard to a Bill of Rights particularly as it relates to allowing or providing a policy making role to the judicial branch often seen as negatively interfering with core “Westminster” gubernatorial norms such as parliamentary democracy and responsible government (Tant, 1993). The Liberal Party has supported such an instrument since the 1960’s and it quickly became party policy. According to Erdos, the empirical record clearly demonstrates an association between support for a new Bill of Rights and those political constituents who share a social ideology of liberalism and concerns regarding social equality. The wider comparative and scholarly literature also supports this association (Morton & Knopff, 2000).
Further, it can be argued that this liberalist association reflects the resources of those identified as social liberals including alleged electoral unpopularity at the policy level as well as their access to sympathetic judges and skilled legal cadre (Erdos, 2009). As such, it would make sense as well as be determined beneficial for a Bill of Rights to be argued from this position particularly if it leads to increased involvement of the courts in the “formulation of public policy” (Morton & Knopff, 2000, p. 29).
Moreover, the argument for a Bill of Rights, for many, is said to have emerged particularly in public debates due in part to changes in society most notably related to the increase and growth of “postmaterialist preferences as well as more diversified immigration (Inglehart, 1990) dating back to the 1960’s. These much noted social changes have served to increase the electorate that is most concerned with social liberal perspectives and issues. The ideological decline of the salience of Marxism and the political salience and size of the working class has arguably contributed to the ideological shift and the resultant need for new constituencies (Erdos, 2009).
Although many will not argue the importance of the debate regarding instituting a new Bill of Rights a comprehensive explanation has not been provided. There seems to be a sporadic tendency of positive engagement by Labour and Conservatives in the debate either at an individual parliamentarian level or institutionally. Moreover, there is no explanation as to explain the timing of Labour’s limited enactment of a Bill of Rights in the Human Rights Act. Erdos posits that on a theoretical level, insufficient attention has been paid to the fact that Bill of Rights potentially transfer policy-making rights from those currently in the seat of power within ‘ordinary political branches’ as well as offer new protections for many social interests (2009).
Contrastingly, support for reformation of the current legislation and the establishment of a Bill of Rights may generate from those who do not share a non-executive power orientation focus as those holding such power currently, and with desire for maintaining it in the future would be hesitant to actively support the development of a Bill of Rights (Bingham 2009).
It is important to note, just as with the very public statements made by Cameron regarding the establishment of a Bill of Rights has a great deal to do with the ‘swing phenomenon’ that has been observed in the attitude of Labour that has become increasingly adversarial during its period in government particularly as it relates to the very practical limitations and constraints the Human Rights Act imposes in regard to the treatment of those seeking asylum, policing of protests, and the struggle against terrorism (Erdos, 2009).
Cameron’s argument in favor of a Bill of Rights suggests that this kind of legislation would allow British governments to ignore the European Court of Human rights rulings that it is in disagreement with. This however is again not a clear and concise argument in favor of the new legislation as t would require the United Kingdom to leave the Council of Europe of which the prospects of doing so seem far-fetched and unrealistic (Klug, 2009). Taken a step further, if there was this disassociation with the Council, it would mean the ECHR would be de-incorporated from domestic law, public authorities would no longer be required to act ‘compatibly’ with the standards and values articulated and supported by the Convention, and individual citizens would no longer be able to assert Convention rights in the current court system. Moreover, there would be no gubernatorial exemption from compliance with unpopular judgments from the ECHR including the “prohibition on deportations to countries where there is a risk of torture — the subject of much controversy in recent years” (Klug, 2009).
Further, it has been argued that even if Cameron’s argument were correct and the Human Rights Act was abandoned or repealed that it would in some way lead to a ‘get out clause’ from the court rulings he desires, the notion of arguing in favor of a Bill of Rights on the premise that this would aid in freeing the UK from international human rights obligations particularly as it relates to deportations flies in the face of many of the countries’ current allies, especially the current administration of the United States (Klug, 2009).
Those advocating for a British Bill of Rights and Responsibilities emphasize the British rights that are argued to be currently absent from the Human Rights Act such as trial by jury. However, again there has been no clear articulation by supporters of the Bill of Rights as to what other rights and responsibilities should be included in a new Bill of Rights. It is this lack of clarity that makes it increasingly difficult to argue in favor of reformation.
The current debate regarding the repeal of the Human Rights Act in favor of a new Bill of Rights is one that is certainly understandable from a political, ideological, societal and individualistic point-of-view. The current Bill of rights dates back several centuries and the Human Rights Act, although more recent, is posited to have many absences or inclusions that make it less than an ideal piece of legislation. However, what serves to be detrimental to the reformation argument is the fact that it is unclear, and failure to enunciate and clearly articulate what a new Bill of Rights and Responsibilities would look like leave little to intelligently argue about and even support.
It seems that each political party and some individual constituents have their own best interest at heart when discussing these matters. And although the issue that certainly was the impetus for this debate is one that must be considered and does require further debate cannot be the only overriding factor the reforming current legislation. Certainly issues regarding terrorism, counter-terrorism, deportation and risks to public safety must continue to be weighed and measured within any genuine political discussions to be had with regard to the legislation of the land. Moreover, ensuring the rights of the citizens of Britain are protected cannot be summarily discounted in any real discussion with regard to the Human Rights Act, the Bill of Rights or the European Convention on Human Rights. As such, without sufficient and clear guidelines as to what a new Bill of Rights would look like, there can be no significant support given to the abandonment or repeal of the Human Rights Act as it stands.
Bingham, T. 2009, ‘the European convention on human rights: time to incorporate’, Law
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