By Mark Tushnet
William Nelson Cromwell Professor of Law at Harvard University
As an outsider to the UK discussions of a bill of rights I’m not in a good position to address whether the United Kingdom needs a modern bill of rights. Perhaps, though, I can use my outsider’s perspective to raise some questions about the inquiry that citizens and scholars in the United Kingdom are engaged in.
My first questions are about what a “modern bill of rights” might be. A standard answer might say that a modern bill of rights has both substantive and procedural content. Substantively, “modern” would seem to direct our attention to what recent bills of rights contain. The answer is: (1) traditional civil and political rights such as freedom of expression (and more recent variants of such rights, including rights to information from the government, personal privacy, and informational privacy), (2) guarantees of social equality, (3) commitments to the provision of basic human material needs such as education, housing, health care, potable water, and food (whether through direct provision by the government or through market processes supplemented by government grants), (4) rights with respect to the environment (whether formulated as “rights of the environment” or as “rights of humans with respect to the environment”), and (5) clearly on the horizon, rights of non-human animals.
Procedurally, there’s a strong – but in my view mistaken – impulse to say that the substantive guarantees in modern bills of rights are to be enforced ultimately by judicial institutions. That impulse has to be resisted or at least appropriately cabined. One reason flows from the long list of substantive rights. It’s implausible on its face that each such right can best be implemented through ultimate judicial supervision, and analysis confirms the implausibility.
Further, a number of important distinctions must be drawn. The first is between actions by public agencies and their failures to act (though the distinction thins out when we consider claims that the agency has done something but not enough). Roughly, we can say that the remedy for government actions is “Don’t do that!” (whether through an injunction or a damage remedy calibrated to deter future violations), and the remedy for government failures is “Do something!”
Note, though, the difference in specificity between the two directives. One can readily imagine a court saying, “Don’t do that,” and then moving off the field, whereas a directive, “Do something,” almost directly invites continued engagement between the government and the reviewing body. And, it’s not evident that courts are the best institutions for such continuing engagements, or even for intermittent supervision of other institutions that do participate in a continuing process of engagement.
Another distinction is between primary legislation and secondary legislation and executive actions authorized by either. I think it generally uncontroversial that courts (or independent administrative tribunals) should have the power to set aside or otherwise provide remedies for secondary legislation and executive actions that violate bill of rights guarantees, on traditional ultra vires grounds. Here too there may be design issues regarding which tribunals and what remedies should be employed, but the fundamental principle that actions violating bill of rights guarantees are ultra vires the authority granted through secondary legislation and the like should be uncontroversial.
The real controversy, in my view, is about primary legislation. Should a court’s determination that primary legislation violates a bill of rights guarantee be conclusive? I’m one of the skeptics who answers, “Maybe not.” I begin with the view that bill of rights guarantees are typically stated in rather general terms (and when they aren’t there’s reason to doubt that they should be included in a bill of rights), from which it follows, at least for me, that there are a number of reasonable alternative specifications (determination, in an older tradition) of those general rights.
And, in a reasonably well-functioning democratic system the chances are typically high that the following propositions are true: (a) quite frequently primary legislation impugned on the ground that it violates a bill of rights guarantee will either reflect or be justified by some reasonable specification of that guarantee, (b) establishing a system that allows courts to reject impugned primary legislation because it can’t be regarded as consistent with a reasonable specification of the guarantee creates the possibility that courts will mistakenly reach that conclusion, and (c) that the social costs of mistaken judicial rejections exceed those of primary legislation that can’t in fact be justified as a reasonable specification of the guarantee at issue.
(For completeness I add that the concern about judicial error doesn’t arise with respect to secondary legislation and executive actions because the legislature has the power to correct the error through primary legislation clearly authorizing the actions, though the courts probably can’t be cut out of the process entirely because they will always have the ability to say that the authorization isn’t clear enough.)
With all this in hand I can at least formulate the question of “need.” The United Kingdom might need a modern bill of rights if the ordinary process of legislation today isn’t likely to produce outcomes consistent with reasonable specifications of the substantive categories of rights and if the third proposition above, about the social costs of judicial and legislative errors, is mistaken under current circumstances. Whether those conditions are satisfied today in the United Kingdom isn’t for me to say.