Let's not just talk about human rights let's actually possess and be able to enforce them

Let's not just talk about human rights let's actually possess and be able to enforce them

The 'faces of human rights' are explored at the British Institute of Human Rights conference


Changing the face of human rights

28 January 2009
The British Library, London

Jack Straw has given the keynote speech at the annual conference of the British Institute of Human Rights.

[Check against delivery: this is the prepared text of the speech, and may differ from the delivered version.]

The Right Honourable Jack Straw MP, Lord Chancellor and Secretary of State for Justice:

Good afternoon.

It is a pleasure to be back at the British Library once again. Last time I was here was for the launch of this marvellous 'Taking Liberties' exhibition; it is a real treat to have another chance to see it.

I sometimes feel that we don't do enough to explain and celebrate the richness which is our constitutional history. Something which stood out for me throughout President Obama's inauguration speech was the sense of how close history was to hand. President Obama consciously echoed significant moments of America's past in his vision of America's future - as if the story of the United States was the guide and template for the next chapter about to be written. For theirs is a story which is quite literally written on stone, cast in public monuments, and retold in homes, in schools, in the admirable expressions of civic duty it has helped engender. Much of the solemnity and indeed the pageantry of the occasion was in commemoration of their nation's struggle for liberty.

But in the United Kingdom, we seem to be much less willing to celebrate our own story, so wonderfully brought together in this exhibition. I would love to see people queuing out of the door - as they do at the National Archives in Washington - to look upon our own constitutional documents: Magna Carta, the 1689 Bill of Rights, the Great Reform Acts, the 1998 Human Rights Act and to understand how vital they have been in carving out the freedoms we enjoy today. And I hope that when this exhibition is reprised in years to come, there will be a Bill of Rights and Responsibilities displayed alongside them.

What I want to do today is to discuss why we have embarked on this somewhat epic journey towards a Bill of Rights and Responsibilities.

First, I want to look at the Human Rights Act and why we consider it to be the starting point rather than the destination, but also to consider why it hasn't captured a place in the public's affections.

Second, to elaborate more on the responsibilities side of the proposition. I have often made the case in support of rights, now I'd like to set out in more detail why we believe that responsibilities deserve greater prominence.

Third, to consider the symbolic value of Bills of Rights, and how they can act as a legal vehicle and a force for social change.

And finally, briefly to consider the process of developing a Bill of Rights and Responsibilities.

Human Rights Act

I firmly believe that the Human Rights Act will stand as one of this government's greatest achievements, and I think that the history books if not necessarily the headlines will record this. It is an important point to restate. It is the point I was making in my recent interview with the Daily Mail which seemingly exercised many supporters of the Act.

As that paper commented I am 'swift to defend' the Act, which is not surprising given how much time and energy I have devoted over the years to bringing about the incorporation of the European Convention on Human Rights into domestic law, first in Opposition and then in Office.

The Human Rights Act represented a step-change in the acquisition of effective rights. Prior to incorporation, accessing those rights via the Strasbourg court was a time-consuming, expensive and difficult process, and as such prohibitive for many. Now, Convention rights can be accessed in UK courts, heard by UK judges.

And they can be accessed by all sections of society; from the elderly couple split up by the local authority after 65 years of marriage, to the most lofty of newspaper magnates - in contrast to their newspaper's own editorial stance I should add.

I think that the British Institute of Human Rights should be commended for the tremendous work they do in drawing attention to, in their words: 'those ordinary people going about their day-to-day lives who are benefiting from the law, without necessarily resorting to the law'.

This is an important distinction, as along with providing a more practical mechanism to access rights, there is a broader cultural (as distinct from legal) benefit, in the positive obligation the Act puts on the state to treat people with dignity, equality and respect. Better prevention and a better cure.

But, it was William Blake who said that 'love to faults is always blind', and I think supporters of the Act would do well to have his caution in mind.

Those of us concerned to see that it endures should ask ourselves why - in spite of the manifest benefits - the Human Rights Act is held in less affection by the public. We should deal with that issue directly and not bury our heads in the sand. To acknowledge the unpopularity of the Act in some quarters, is not to cede to that view: to recognise that there is a perception out there that the Act is a 'villains' charter' is very different from accepting that is the reality.

The only way of challenging this view is to engage in debate at the point of criticism, to encourage a genuine dialectic. There is also a need to inject a dose of realism to a debate that can tend towards the abstract and the rarefied.

So why is it that the Act has an image problem?

Some of it is down to myth and misreporting: it is true that we hear much about people 'claiming their human rights', sometimes in the most absurd and inaccurate circumstances, but little about the outcome.

Some of it is down to misapplication: public authorities have made mistakes. It is a feature of rights based legislation that it is more visible in the breach than in the observance.

But some of it is down to the fact that - in the words I used with the Daily Mail - the Act is an Aunt Sally; unfairly blamed for a host of other issues. Tensions between rights would exist if there were no Human Rights Act, they are the price we pay for living in a civilised society, under the rule of law.

The Act has also been a victim of circumstance. As I said recently in a speech at an event run by Justice couple of months ago, 'the Human Rights Act has not had an easy childhood'. With the atrocities of 9/11 occurring less than a year into its operation, the consequence (for some), was a hardening of hearts towards fundamental human rights.

As I have just said, any mechanism through which to enforce rights inevitably leads to tensions, to conflicts of rights. People qualify for these basic rights not because they are good citizens but because they are human beings. But that does not always mean that they seem deserving of them. That is a fact which pre-dated 9/11. But what those events did was bring to the forefront of people's minds and onto their TV screens, an issue which had previously been there but on the periphery. For most people, this was an arcane, academic, marginal debate, with little influence on their daily life. 9/11 changed that, and the debate then became about whether terrorists themselves should be given the very rights they deny to others.

Why change is required

The environment today, therefore, is manifestly different from that in which the Act was made law in 1998 - let alone when the ECHR was drafted nearly 60 years ago. I have spoken at some length in my Mackenzie Stewart lecture, and also to the Guardian Human Rights conference last year about the history and etymology of the European Convention on Human Rights, so I shall not rehearse these at any length here. Suffice it to say that in the immediate aftermath of World War II, the European Convention on Human Rights was borne from the need to protect the individual from the arbitrary exercise of power by the state. As such it represents the pinnacle of the status of the individual.

Europe and the UK have changed immeasurably since the time of the European Convention on Human Rights. Broad social change - greater consumerism, globalisation, less homogeneity - have all contributed to what I have previously described as the 'commoditisation of rights'. As a result, I believe that a restatement of what binds us together as a society is ever more necessary.

In response to this changing context, the choice is stark: either rein back on rights and repeal the Human Rights Act as some propose, or build on it, not by reneging on rights but by elevating responsibilities as the Government proposes.

We have always seen the HRA as 'a floor and not a ceiling' as I said during the Second Reading of the Bill in 1998. We saw it as the starting point for the development of a wider culture of rights and responsibilities. At Commons 3rd Reading I was explicit about this when I said, in the context of a human rights culture, that 'there can be no rights without responsibilities and our responsibilities should precede our rights'.

A Bill of Rights and Responsibilities could reflect the full picture of rights and responsibilities we have in the United Kingdom, including across the Welfare State. It could reflect the new priorities for this century, like the well-being of children, or sustainable development - matters which were not priorities in the middle of last.

Emphasis on responsibilities

So let me now turn to why we consider responsibilities to be so fundamental a part of our proposed reforms.

Over the decades since the war there has been a gradual erosion of many of the informal social bonds that once held us together, the bonds of class, church, where we were born. These social structures were often the measure and arbiters of acceptable behaviour - what Bobby Kennedy famously described as 'the thousand invisible strands of common experience and purpose, affection and respect which tie men to their fellows'. These threads, however, must constantly come apart and re-form in new ways - that is the natural process of social advancement and change, not the symbol of social degeneration as some claim.

At the same time there has been considerable progress in the development of a legal and social architecture of rights internationally and at home – the strengthening of the status of the individual, if you will.

But what has been the effect?

It has led to an imbalance whereby the importance placed on our responsibilities has not developed commensurate to the expressions of - and the understanding of - our rights.

People are now well aware of what we are entitled to but less cognisant of those duties beholden upon us. 'Liberty means responsibility', wrote George Bernard Shaw, 'that is why most men dread it'. It is perhaps not surprising that we have so far been less willing to accept what we owe than what we are owed.

We are approaching the point whereby we are in danger of jeopardising the reputation and ultimately operation of rights unless we change this seeming imbalance. The concern is that people will undervalue at best, devalue or dismiss at worst, the notion of fundamental human rights.

The question arises therefore: how do we elevate the significance and status of responsibilities - so they are seen as every bit as integral to our social framework as rights - without making rights contingent upon responsibilities?

We do not want to see fewer rights, or a more heavily qualified set of rights - we recognise that there is a hard deck, a minimum and common standard set by the European Convention on Human Rights.

What we can do is to raise our responsibilities to each other in a symbolic and declaratory way alongside the rights we so value: to put them explicitly on a constitutional footing.

The clearest symbol would be to place rights and responsibilities in one document - a Bill of Rights and Responsibilities - together, side by side, and regarded with similar importance. Comparable but not contingent.

Some in the field of human rights appear to recoil at the very mention of responsibilities in the same sentence as rights.

But throughout the ages, rights and responsibilities have been seen together. Take Jeremy Bentham: 'Rights and obligations, though distinct and opposite in their nature, are simultaneous in their origin, and inseparable in their existence'.

Or Thomas Paine: 'A Declaration of Rights is, by reciprocity, a declaration of duties also. Whatever is my right as a man is also the right of another and it becomes my duty to guarantee as well as to possess' [The Times, 13 November 2007].

The issue is that they are sotto voce, implied, inherent. If they are already the 'other side of the same coin that stipulates our fundamental human rights and freedoms' [Professor Robert Blackburn, evidence to Joint Committee on Human Rights, 29th report at 260], why should this not be made more prominent, explicit and clearly articulated? This is not to make rights 'earned' any more than they already are.

As David Pannick has argued, a Bill of Rights and Responsibilities would 'emphasise that human rights law involves a balance between rights and responsibilities, as the case law under the European Convention recognises'.

Indeed the European Convention on Human Rights itself, not least Article 10.2, states that 'the exercise of these freedoms, since it carries with it duties and responsibilities, maybe subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society'.

Equity

We are currently exploring ways in which the courts could potentially give greater regard to responsibilities whilst falling short of making them justiciable. This is not a concept alien to our legal tradition. Take the development of the law of equity by way of analogy.

The Law of Equity in developed in the Middle Ages in response to the limitations of common law which, due to its inflexibility, would sometimes lead to unfair results, particularly as the common law then generally only had one remedy; that of damages. There are times when remuneration is inadequate, particularly when true justice requires for certain behaviours to be prevented rather than recompense for damages done.

The principle goes even further back to the very basis of our law; 'Aristotle had written of it as a means of correcting general laws which in their nature could not provide for every eventuality; in particular it required written laws to be interpreted according to the intention rather than the letter' [JH Baker, An Introduction to English Legal History, p106].

These guiding principles hardened over centuries into the Maxims of Equity, beloved of all law students. For example, the principle applied by the courts in equity cases is that 'he who comes to equity must come with clean hands'. In this way, consideration of the behaviour of both parties to a claim is already well established in the British legal tradition, indeed it was a development led by the courts themselves.

Maxims of equity are often expressed as 'natural law', which has developed over time as fundamental principles of justice. It is a representation of society's instinctive understanding of and desire for fairness - going beyond that which the lawmakers hand down.

Symbolic value

Even without full justiciability words themselves can have a political and moral weight - look at the Universal Declaration of Human Rights. It contained no legally enforceable rights, rather, it was the global expression of a shared commitment - an enormously powerful symbol and recognition of mankind's common dignity.

The significance of a document can go way beyond the words contained within it. As Philip Alston has argued, Bills of Rights must be a 'combination of law, symbolism and aspiration'. Or as Francesca Klug once memorably put it - 'they need to touch the parts other Bills don't reach'.

Just look at the constitutional documents in the US - they are imbued with a significance which is greater than their legal or interpretative effect, they are cultural every bit as much as legal documents, history as much as law. Or more recently the Canadian or South African Bills of Rights - which have acted as both the symbol and mechanism of national unity.

In the longer term, in the UK, if we have a new constitutional document in a new constitutional architecture which gives greater status, prominence and significance to responsibilities - elevating them in the same way as hard fought rights - this will articulate to society at large the obligations we owe to each other as human beings in a modern, liberal democracy, and the importance we collectively hold by them.

A Bill of Rights and Responsibilities could be emblematic of the fair society we want to live in, where awareness of rights are matched with understanding of responsibility. A society where people aren't just aware of what we are due but a society where people are also recognise what we owe to one another.

It is a process of renewal which other advanced democracies are undergoing - no longer as a product of war, revolution or social strife, but out of a desire to see the achievements of the past 50 years made safe for the next. The Dutch government is currently developing a 'Charter for Responsible Citizenship' as a counterpart to the rights guaranteed by their constitution. The Charter is not intended to be a formal document with direct legal or even normative effect. It aims to stimulate social change by increasing individuals' understanding of their responsibilities to one another and to society as a whole.

Conclusion - the process

I said at the outset that I wanted the process by which we develop the Bill of Rights and Responsibilities to be a genuine dialectic. So I make no apology for the delay in publishing the Green Paper which outlines the government's thinking in this area. We are dealing here with the fundamental building blocks of our constitution, and it goes without saying it is something we need to get right.

I am very grateful indeed for the contributions already made by the British Institute, the British Library and indeed many others in this room. And I look forward indeed to the responses to the Green Paper.

But if this entire process is to work, it needs to have legitimacy in the eyes of the public. And that means making the case for why we need a Bill of Rights and Responsibilities and giving them a stake in the process. Just as fundamental human rights are not in the gift of governments or lawyers, the public must have sense of ownership over a Bill of Rights and Responsibilities if it is to become a defining constitutional document of our times.

I do not dismiss ideas about the many different forms this process might take; but I do believe that if one is to build up a political consensus, and develop democratic legitimacy, the process necessarily has to be initiated by government and Parliament. But it will not succeed unless individuals and organisations across the country, not least those here today, are able to help to secure the necessary broad public consent across UK society that can ensure that any Bill of Rights and Responsibilities endures.