By Stephen Gardbaum
Stephen Yeazell Endowed Chair in Law, University of California, Los Angeles
The short answer is ‘no’, because the UK already has one. As the first general, reasonably comprehensive bill of rights since 1689 and, arguably ever, the Human Rights Act 1998 (‘HRA) is undoubtedly a ‘modern’ bill of rights. With only a few specific omissions, it contains the same set of rights as the European Convention of 1950, which is as modern as the roughly contemporaneous bills of rights in the German, Indian, and Italian constitutions, as textually supplemented and updated by subsequent protocols.
If anything, the Government’s proposed reform would result in a less modern bill of rights than the HRA, as it aims to exclude or minimize positive obligations and neutralize the key ‘necessity’ component of proportionality analysis, both hallmarks of contemporary rights jurisprudence in most parts of the world. In these ways, as well as by adding a right to jury trial and strengthening freedom of expression claims where they conflict with privacy or other values, it is more reminiscent of older approaches, such as that of the U.S. bill of rights.
The HRA may not be an ultra-modern, state of the art, cutting edge bill of rights, with extensive second and/or third generation rights and imposing certain obligations on private actors, such as the those in the South African and Colombian constitutions. But this is obviously not what the Government has in mind.
The consultation paper proposes to repeal the HRA and replace it with a new bill of rights, rather than amend it. So, a second question naturally arises: does the UK need a new bill of rights? Typically, there are four main reasons why a country might replace its existing bill of rights, assuming it has one in the first place. Firstly, as part of the broader process of rewriting its (codified) constitution as a whole. Secondly, to substantially change the content, and perhaps also types and scope, of rights protected. Examples might include recognising some second or third generation rights for the first time, replacing a ‘partial’ bill of rights with a full one, or giving certain rights direct horizontal effect (i.e, imposing obligations on private individuals to uphold the human rights of others).
Thirdly, to alter the legal status of its bill of rights; for example, from a statutory to a fully constitutionalised charter, as with the contrast between the Canadian Bill of Rights 1960 and the Canadian Charter of Rights and Freedoms 1982. Fourthly, to give it a new source, such as creating a purely domestic document rather than one linked, in one way or another, to international or supranational law. Broadly speaking, these reasons reflect major changes that alter the basic identity of a bill of rights and correspond with the general distinction between replacing and amending a constitutional text.
The Government’s consultation paper, however, proposes no such changes. Whatever the merits of the individual reforms (and I do not have the space to engage with this issue here), they amount to a list of piecemeal amendments and certainly not wholesale or fundamental transformation. All current HRA rights are to be retained, and the only additions are a right to jury trial (that already exists by statute) and a ‘strengthened’ right to freedom of expression. The legal status of the bill of rights is unchanged.
There is no suggestion that it will either be downgraded from a ‘constitutional statute’ or made part of a codified or documentary constitution. The hybrid source of the rights as neither fully domestic nor international is unaltered, although section 2 will be tweaked to emphasize domestic protections and downplay Strasbourg jurisprudence. Otherwise, apart from what was mentioned above, something will be shaved off the ‘so far as it is possible’ language of section 3 to try and prevent ‘judicial amendment’ of statutes under Section 3, the importance of ‘personal responsibilities’ will be noted, perhaps in the preamble, and ‘more guidance’ will be given to courts on how to balance rights and the public interest.
In short, the goal appears to be the largely symbolic one of finally redeeming the longstanding promises of Conservative manifestoes past to get rid of the HRA, if only in name, and reaping the political benefits of its ‘unowned’, unloved status. Given the absence of any significant change in its content, the Government cannot realistically hope to get away with calling it a ‘British’ bill of rights, so a ‘Modern’ one will have to do, however bland and inaccurate the contrast.