A Bill of hopes and aspirations

In recent years, we have grown used to the idea of legislation that is not intended to have any effect.

A recent example is to be found in the Compensation Act 2006, section 1 of which is supposed to deter the so-called compensation culture by merely “reflecting” the existing law. Similarly, the Government says that a clause in its current Coroners and Justice Bill making it an offence to encourage or assist suicide “does not change the scope of the current law”.

Now, it seems, we are to have a whole Act of Parliament that is not going to change the law. On that basis, as the Government frankly admits, we might be better off not having legislation in the first place.

I speak, of course, of the Government’s proposed Bill of Rights and Responsibilities, unveiled in a Green Paper today.

That sentence requires some clarification. First, there was no draft Bill in the Green Paper — only a broad discussion of what might be in one. And, secondly, Jack Straw published the Green Paper unveiling his proposed Bill of Rights and Duties — as it was then called — nearly two years ago.

“A Bill of Rights and Duties could provide explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others,” the Lord Chancellor said in July 2007. “It would build on the basic principles of the Human Rights Act, but make explicit the way in which a democratic society’s rights have to be balanced by obligations.”

There has been no discernable change in Mr Straw’s thinking on this subject over the past couple of years. But the passage of time allows him to say that it is now impossible to bring forward legislation before the next general election. Normally, ministers promise to legislate when Parliamentary time allows. This must be the first time a minister has promised not to.

Today’s Green Paper is called Rights and Responsibilities: developing our constitutional framework. It is a superbly written piece of work, its stirring phrases brimming with history, philosophy and jurisprudence.

The occasional jarring notes must surely represent ministerial amendments to an official’s well-crafted draft: otherwise, how are we to explain why “treating National Health Service and other public-sector staff with respect” is listed ahead of safeguarding children and living within environmental limits as one of the key responsibilities we all owe as members of society?

For a lawyer, though, the key section is chapter 4, which discusses the legal effect that a Bill of Rights and Responsibilities might have.

“The possible range of approaches to a Bill of Rights and Responsibilities represents a continuum,” it says. “At one end, it might take the form of a declaratory and symbolic statement. At the other lies a set of rights and responsibilities directly enforceable by the individual in the courts. Along the continuum there are options including some form of statement of principles which, endorsed by Parliament, might inform legislation... while not necessarily giving rise to enforceable individual rights.”

The paper makes it clear that giving individuals “justiciable” rights — ones that can be enforced in the courts — is the last thing the Government wants to do. That would involve empowering the judges.

“The further along the spectrum towards directly justiciable rights, the stronger is the likelihood that the courts assume a more important role in protecting individual freedoms,” it says. “Conversely, creating any Bill of Rights and Responsibilities as a purely declaratory instrument emphasises the cultural: empowering people by making them more aware of their rights and responsibilities.”

There are three options along the continuum, it seems.

1. A declaration of rights and responsibilities
“Such a declaration would be intended to have no legal effect in the courts,” the Government says. “It would enable Parliament to set out a common and explicit understanding of the values underpinning reciprocal rights and responsibilities, including the rights of individuals, the responsibilities of public authorities to respect rights and the mutual responsibilities we owe each other as members of society.”

But if it has no legal effect, why bother introducing legislation?

“Such a charter or declaration could be fully debated in Parliament but would not necessarily need the statutory force of an Act of Parliament. A non-statutory declaration could be readily amended and updated over time. Its effect would be intended as primarily political and symbolic rather than legal.”

And if the declaration didn’t really mean anything, you wouldn’t have to worry so much about what it actually said. “It would provide an opportunity to express rights and responsibilities in inspiring and motivating language, without the constraints placed by the careful drafting needed in legislative provision.”

The Government sees advantages in bringing together existing rights, even doing so would have no legal effect. “A non-justiciable declaration could include broad aspirations (for example, to the resolution of disputes by peaceful means; to tolerance and respect for others; and to safeguarding of the environment for future generations), where traditional legal sanctions would not be appropriate. Some rights, such as the rights of victims of crime to be treated with respect and dignity may also be better achieved by training and education than through legal action.”

2. General interpretative provisions
“A Bill of Rights and Responsibilities could set out general interpretative principles to be taken into account by courts when considering challenges to decisions by public authorities,” the paper says. “It could, for example, expressly refer to the principle of proportionality and the need to balance certain individual rights against the public interest and the rights of others, to the values of dignity and respect or to the fundamental principles underlying the welfare state.”

This, says the Government, would be one way of giving the new document “more legal force than a declaration without encouraging an increase in litigation” — clearly the one thing ministers are keen to avoid.

“One variation on setting out general interpretative principles,” says the paper, “would be to place a duty on public authorities to have regard to relevant principles when exercising their functions and in making decisions, thus adding an extra degree of legal effect to the type of provision or principle set out... The advantages of doing so would need to be weighed against the potential disadvantages of placing more legal duties on public authorities.”

An “extra degree of legal effect”? But public authorities are required to follow these principles anyway. What difference would this make? What difference would the Government want it to make?

3. Specific provisions enforceable in the courts
“At the far end of the spectrum of justiciability would be an approach whereby any new provisions expressed in legislation would be intended to be legally enforceable.” However, we are told, “the Government does not consider that a generally applicable model of directly legally enforceable rights or responsibilities would be the most appropriate for a future Bill of Rights and Responsibilities.”

So we know where we stand. And the Government insists that there would be no change to police powers of detention, anti-terrorism legislation, citizenship, immigration status and so on. “Any new Bill of Rights and Responsibilities should make it clear that ... the courts would have no power to strike down or re-write future legislation in these areas,” the Government adds, perhaps a trifle nervously. Nor can the judges be allowed to get their hands on resource allocation; that’s a matter for ministers and Parliament.

Curious, is it not, that the Government should feel the need to re-state the traditional division between the legislature, the executive and the judiciary in this way. Surely ministers don’t think the new Supreme Court will upset the apple-cart when it starts work in little more than six months’ time?

Little chance of that. Far from being a Bill of Rights and Responsibilities this is likely, in the words of the Liberal Democrat MP Sir Alan Beith, to be merely a Bill of hopes and aspirations.

Posted at March 23, 2009 11:11 PM