Thursday, January 3, 2013

A Bill of Rights for the UK?

Last month, the UK's Commission on a Bill of Rights, appointed by the Conservative-Liberal coalition government, released a report (available here) on the desirable of adopting an explicit, written Bill of Rights for the UK. As most readers of this blog will know, the UK has never had an explicit, written constitution or bill of rights, but instead operates a constitutional system based on parliamentary sovereignty (at least in theory), which has not prevented the UK from operating a successful representative democracy at least since the Reform Acts of the nineteenth century. In the late 1980s, Parliament enacted a Human Rights Act (in compliance with EU Directives), which gives its courts authority to declare violations of human rights, but does not restrict parliamentary authority (the UK courts cannot overturn legislation that violates the Human Rights Act or any statute or treaty).

A majority of the members of the Commission on a Bill of Rights, which includes at least a couple whom are Euro-phobes and want to reduce the (supposed) authority over the UK of the European courts, believe that the time is ripe for the UK to adopt a Bill of Rights with super-statutory status, including giving the UK courts power to prevent Parliament from violating whatever rights it enshrines. However, there is little agreement on exactly which rights should be so enshrined and for whom (Only the English? Scots? Welsh? Northern Irish? Manxmen? Falkland Islanders?).

Today, in the London Review of Books (see here), the two dissenters from the Commission's report, Phillippe Sands (an international law professor from University College London) and Baroness Helena Kennedy (a barrister and Principal of Mansfield College, Oxford) have published an article explaining their opposition to the near-term adoption of a UK Bill of Rights. What I find most interesting about their dissenting opinions is that they come from the left (as it were), rather than the right. Rather than arguing on traditional grounds that the UK's constitutional system has functioned relatively well under the long-established system of Parliamentary sovereignty without a written constitution or Bill of Rights, Sands and Kennedy are mainly concerned about the potential political effects of adopting a Bill of Rights on the UK's European commitments. They also observe, quite reasonably, that adopting a Bill of Rights without the context of larger constitutional reforms might have unintended, deleterious consequences even for individuals intended to be the beneficiaries of (supposedly enhanced) constitutional rights.

The ongoing debates over the Bill of Rights and other constitutional developments in the UK (including "devolution" of power to parliaments in Scotland and Wales) are among the most fascinating, and under-reported (outside of the UK), meta-legal battles being waged anywhere in the world in the twenty-first century. Especially given Britain's unique, consequential, and influential history of constitutionalism, it's surprising that so few US constitutional scholars are paying any attention. But then, US Con Law scholars are usually so myopically and parochially wrapped-up in the US constitution and, especially the US Supreme Court's exegeses of it (participating unwittingly in the post-modernist fetish with text) that we really cannot expect them to attend to constitutional developments in  other places, especially in countries (including virtually ever country on earth) that fail to recognize just how superior is our own constitutional system.

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