So the Bill of rights Commission has produced its final report after a 21-month long study into the state of human rights in British law, tackling the major question of whether Britain needs a Bill of Rights.  The  reaction from the legal fraternity has been marked by, well, slight disappointment.  The biggest news of the report seems to be less its content and more the fact that it failed to reach unanimity on  the questions in its terms of reference, such was the disagreement among its members about how to proceed.  For some this was inevitable given the competing factions and vested interests which led the creation of the commission in the first place.

On the million dollar question of whether Britain needs a bill of rights, the plurality (given that there was no consensus) gave a qualified yes.  One of the main reasons for this conclusion was the fact that the other obvious candidate for the title of Britain’s bill of rights, The Human Rights Act 1998, lacked sufficient ‘ownership’ by the public at large .  A domestic bill of rights which, significantly, would build on, rather than replace, the rights contained in the Human Rights Act, would go some way in fostering popular engagement with human rights.

For some, not least the dissenting minority report of the commission, the necessity of a bill of rights is at best superfluous and at worst a smoke screen for more sinister motives such as undermining the rights already protected under the European Convention of Human Rights or a prelude to the UK’s withdrawal from the Convention.  Whichever interpretation of the motivations of the plurality’s recommendations in the report, it does hit on an important issue.

Historically, bills of rights, as much as written constitutions, have been the product of a rupture with the past and the symbol of a brighter future.  The French Declaration of the Rights of Man and the Citizen and the Bill of rights stitched into the US constitution as a series of amendments were part of the process of transition from the ancien regime to the founding of a new political community.  More recently the German and Italian constitutions’ robust bills of rights, the myriad bills of rights of post-colonial constitutions, and those of the former soviet bloc countries and the new South Africa were all part of a transition from past tyranny to a more just future.

In this sense, bills of rights have played a strong identificatory function, a robust statement of the identity of a newly founded political community. The identity of this new community was marked by what it was not; a rejected ‘other’ be it a tyrannical monarch on the other side of Atlantic, as in the US case, or closer to home as in France, brutal dictatorships as in Germany, Latin America or the ex-Soviet countries or an odious regime such as apartheid in South Africa.

This identificatory function of a bill of Rights is something which the Human Rights Act, or indeed the Bill of Rights commission itself, would have difficulty fulfilling. Whereas copying and pasting from international human rights instruments into a domestic bill of rights as the Human Rights Act essentially does is not uncommon (see the ex-Soviet state constitutions and the myriad post-colonial constitutions), the nature and passage of the human rights Act, an ordinary Act of parliament passed pursuant to an election manifesto, was not quite the wide-ranging deliberative ‘constitutional moment’ which could have discharged this identificatory function.  The bill of rights commission itself, while proposing a constitutional convention amongst its recommendations, could not have hoped to discharge this function either, so limited was its remit, membership and visibility among the wider public.

The identificatory function of a bill of rights is considerably complicated in an increasingly dis-United Kingdom.  One of the reasons for the equivocation in the opinion of the plurality as to when such a bill of rights should be created in the report was the fact that with a referendum on Scottish independence looming, and a parallel bill of rights process for Northern Ireland ongoing, that the question of drafting a bill of rights  for the UK as a whole, would require the resolution of the constitutional question of the shape of the United Kingdom into future.

However, the identificatory function of a bill of rights is crucial to this shape given that it constitutes a statement of the kind of political community the current (and future) UK is; one that upholds the rule of law and human rights or one that does not.  As such, the question of a bill of Rights for Britain is inextricably bound up with the question of the future form of the UK, and like the question of form, is not one that will go away anytime soon.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh.   

Suggested citation: C. Mac Amhlaigh,  ‘Whether you agree with its conclusions or not, the bill of Rights Commission hit on an important issue for human rights and the future of Britain.’   UK Const. L. Blog (19th December 2012) (available at http://ukconstitutionallaw.org