CIVIC REPUBLICAN NEWSLETTER

 

“Constructing a Humanist Politics”

www.republicans.org.uk

 

Issue No 8 Friday 24 October 2008

 

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This week

 

       "Necessitous men are not free men” Important Parliamentary Committee Bill of Rights Report evokes Franklin D. Roosevelt

 

       Republic Annual Conference, Saturday, 26th October.

 

 

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CONSTITUTION

 

       "Necessitous men are not free men” Important Parliamentary Committee Bill of Rights Report evokes Franklin D. Roosevelt

        

 

The House of Lords House of Commons Joint Committee on Human Rights published on 21 July 2008, its Report entitled “A Bill of Rights for the UK?”  

 

The committee is made of six members of the House of Lords and six of the House  of Commons.

 

From the Civic Republican point of view this is an excellent document and perhaps a milestone in thinking about a Bill of Rights for Britain. These are the two important themes running through the Report:

 

        It puts great emphasis on the necessity for “economic enfranchisement” as essential to a good and democratic society. It supports Franklin D. Roosevelt’s dictum that "Necessitous men are not free men”. It says emphatically that rights should include “positive rights”, that is, rights to a certain level of wellbeing.

 

        It defies the New Labour position that rights can be compromise by requirements of citizenship, responsibility or anything else

 

The document (hereinafter refer to as the Report) is in many ways Civic Republican in spirit and this is no doubt, why it finds itself at odds with a government far more interested in its own authority than the rights of the citizens.

 

The chances of the Report having any effect are therefore correspondingly slim. It has naturally been largely passed over by the Press which no doubt suits the government.

 

Meanwhile a select committee has once again proved itself to be in touch with not only political history and the history of ideas, but also to drifts that are currently occurring that make it essential that we address such a fundamental issue as the rights we are due from the state.

 

The following attempts to bring out of the Report the essential points.

 

Quotes from the Report are in italic.

 

 

PRECEDING LAW

 

The European Court of Human Rights was established in 1959 and made its first judgment in 1960. The UK is a member. (It should not be confused with the European Court of Justice which is part of the European Union.) It has 47 members which are the member states of the Council of Europe. It includes countries such a Ukraine and Turkey which are, of course, not members of the EU. The ECHR established a base line of human rights for members of the Council of Europe.

 

In 1998 the New Labour government passed the Human Rights Act in the UK parliament. The Report says.

 

The issue is not whether the Bill of Rights is going to be compliant with the ECHR, which is a fairly low threshold, but whether it is going to be “HRA-plus”, that is, add to and build on the HRA as the UK’s scheme of human rights protection.

 

 

TIMING

 

The interesting thing about the Bill of Rights here is that there is not a massive cry for a Bill of Rights at the moment. Most of the Bills of Rights that emerge come out of some form of constitutional conflict

 

 

ASPIRATION

 

The Report declares that it has set itself an expansive brief.

 

Any new Bill of Rights should be both declaratory and aspirational. It should state and make fully enforceable all those fundamental rights which currently exist. But it should also look to the future by setting out a clear vision of the sort of society to which the country aspires.

 

A preamble [to the Bill of Rights] and an appropriate interpretive provision referring back to the preamble could provide the aspirational dimension which is missing from the HRA.

 

 

PRINCIPLES

 

The Report declares that it is suspicious of the government’s motives for being interested in a Bill of Rights. The Report seeks to challenge the government attitude on many occasions

 

We have discerned a number of possible motivating factors behind the Government’s interest in a Bill of Rights:

 

  • ·         To provide a means of balancing rights with responsibilities;

  • ·         To include some recognition of the importance of social and economic rights such as health and education

  • ·         To protect the weak and vulnerable against the strong and powerful.

 

We regret that there is not greater clarity in the Government’s reasons for embarking on this potentially ambitious course of drawing up a Bill of Rights.

 

The report by contrast sets out its own agenda

 

In particular, a Bill of Rights and Freedoms should give lasting effect to values shared by the people of the United Kingdom:

 

1.    The rule of law: the commitment to power being exercised lawfully as determined by an independent judiciary;

2.    Liberty: the freedom from both unwarranted restrictions and from want;

3.    Democracy: giving as much control as possible to individuals over the decisions which affect their lives;

4.    Fairness: the equal right of each and every person to be treated with dignity and respect;

5.    Civic duty: the responsibilities to each other and to the communities to which we belong.

 

If there is to be a UK Bill of Rights, as we believe there should be, it ought to have a Preamble which sets out, in a simple and accessible form

 

o   first, the purpose of adopting a UK Bill of Rights

o   second, the values which are considered to be fundamental in UK society.

 

The guiding principles are that any modern UK Bill of Rights must:

 

  • Build on the HRA without weakening its mechanisms in any way
  • Supplement the protections in the ECHR
  • Be in accordance with universal human rights standards
  • Protect the weak and vulnerable against the strong and powerful
  • Be aspirational and forward-looking
  • Apply to the whole of the UK geographically
  • Apply to all people within the UK
  • Provide strong legal protection for human rights

 

 

INCLUSION

 

The Report is believes that the government wishes to compromise the people to whom the Bill of Rights should apply. It is clear that the only qualification for human rights should be being human.

 

The rights enshrined in the HRA apply to everyone in the UK, irrespective of their citizenship or immigration status. Bills of Rights protect rights which people have by virtue of being human, not according to their legal status as citizen or non-citizen. It is regrettable that the loose language of the Governance of Britain Green Paper [see below] appeared to suggest that some of those rights - such as equality before the law - are associated with citizenship.

 

A UK Bill of Rights and Freedoms is desirable in order to provide necessary protection to all, and to marginalised and vulnerable people

 

At the heart of British citizenship is the idea of a society based on laws which are made in a way that reflects the rights of citizens regardless of ethnicity, gender, class or religion.

 

 

BOTTOM-UP NOT TOP-DOWN

 

it is vital that it is owned by the British people and not just the lawyers. For it to have real traction with the British people they must have an emotional stake in, and connection with it

 

Any move to introduce a British Bill of Rights must start with a comprehensive public education campaign and a major consultation.

 

We consider that the bill in its final form should also be confirmed by a referendum.

 

 

NEGATIVE AND POSITIVE RIGHTS

 

Current discussions concerning the definition of Liberalism and liberty have often focused on an essay written by Sir Isaiah Berlin in 1958 called "Two Concepts of Liberty". The two concepts are of negative and positive liberty

 

Berlin defined negative liberty as the absence of constraints on, or interference with, a person's possible action. Greater "negative freedom" meant fewer restrictions on possible action. He associated positive liberty with the idea of self-mastery, or the capacity to determine oneself, to be in control of one's destiny.

The Report discusses how positive liberty became during the twentieth century a part of the debate on rights whereas before rights had largely meant negative rights

 

The focus of the classic Bills of Rights, from [the 13th to the] 18th centuries, was the protection of the individual’s liberty against the intrusive and interfering power of the overweening state.

 

§  Magna Carta (1215)

§  English Bill of Rights (1689)

§  French Declaration of the Rights of Man and the Citizen (1789)

§  American Bill of Rights (1791)

 

Liberty was conceived as negative liberty, the absence of restraint. It remains the view of many today that the protection of human rights by Bills of Rights should be confined to this set of broadly Enlightenment values, and that this is the only legitimate purpose of a Bill of Rights.

 

In the second half of the 20th century, however, conceptions of human rights began to change.

 

In 1941, US President Franklin D. Roosevelt made his famous “Four Freedoms” speech in his State of the Union address to Congress, at the height of the Second World  War: In the future days, which we seek to make secure, we look forward to a world founded upon four essential freedoms.

 

1.    The first is freedom of speech and expression …

2.    The second is freedom of every person to worship God in his own way …

3.    The third is freedom from want …

4.    The fourth is freedom from fear …

 

In 1944 made his equally famous “Second Bill of Rights” speech, in which he suggested that America had now effectively accepted a second Bill of Rights, embracing freedom from want and freedom from fear:

 

True individual freedom cannot exist without economic security and independence. "Necessitous men are not free men”

 

·         The right to earn enough to provide adequate food and clothing and recreation;

·         The right of every family to a decent home;

·         The right to adequate medical care and the opportunity to achieve and enjoy good health;

·         The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

·         The right to a good education.

 

Roosevelt’s “Four Freedoms” were explicitly incorporated into the preamble to the

Universal Declaration of Human Rights (UDHR)

 

The Universal Declaration of Human Rights was adopted by the United Nations in 1948.

 

NEGATIVE RIGHTS

 

The focus of the classic Bills of Rights, was the protection of the individual’s liberty against the intrusive and interfering power of the overweening state. Liberty was conceived as negative liberty,

 

We believe it is important that any UK Bill of Rights includes strong legal protections for freedoms such as freedom of assembly, freedom of expression, freedom from unreasonable search and seizure, and freedom from unwarranted intrusions on privacy, all of which are essentially negative liberties from state interference.

 

For this reason, we believe any bill of rights should be called a UK Bill of Rights and Freedoms.

 

 

POSITIVE RIGHTS

 

The Report boldly advocates that a new Bill of Rights should include positive rights

 

One of the biggest controversies in the debate on the Bill of Rights is whether it should include social and economic rights. We believe that there is strong public support for including rights to health, housing and education.

 

The Bill of Rights and Freedoms should initially include the rights to education, health, housing and an adequate standard of living.

 

A Bill of Rights would give the opportunity to include some additional human rights and freedoms which could be recognised as fundamental in the UK, such as certain economic and social rights

 

We recommend that any Bill of Rights should in the first place include only rights to health, education, housing, and an adequate standard of living, with a view to reviewing the experience after a period and considering whether to add other social and economic rights not currently included. (Paragraph 196)

 

In our view there is a strong case to be made for including the right to a healthy and sustainable environment in a UK Bill of Rights.

 

The position the Report takes on positive rights is perhaps the most significant part of the document.

 

It accords in fundamental principle with the notion of Economic Enfranchisement that is one of the “Five Ideals” established in the Civic Manifesto at www,republicans.org.uk. This is a very Republican idea and its history goes back to the Roman Republic where the idea of providing for and protecting the citizens was fundamental. It is an idea that runs through Civic Republican thought through the centuries (See Civic Republicanism by Iseult Honohan)

 

The fundamental idea behind Economic Enfranchisement is that Political Enfranchisement means little without a reasonable level of wealth and security. Without these things citizens do not have a stake in society and so have no reason to use their vote wisely for the good of all and may not use it at all.

 

The importance of this is ever clearer today as New Labour has clearly disregarded the positive rights to economic enfranchisement of the citizens with its policies that have favoured financial institutions whilst loading the citizens with intolerable debt and declining asset prices and now increasing unemployment and an economic recession.

 

The previous Conservative administration whose policy was lead by the revered Margaret Thatcher similarly left many of the citizens unemployed, impecunious and/or bankrupt and caused a long recession with high unemployment.

 

The Bill of Rights would declare according to this Report that the government has an obligation to protect the citizens. No sector should have priority in this and certainly not bakers and the City of London.

 

 

RIGHTS, LAW AND DEMOCRACY

 

Having proposed its radical ideas on positive rights the Report rightly suggests that these rights must not usurp the role of either parliament or the courts. In this the rights require careful framing. Nevertheless, the Report wants the principle that the nation has a debt to its citizens to be proclaimed in the Constitution.

 

We agree with the Government that including fully justifiable and legally enforceable economic and social rights in any Bill of Rights carries too great a risk that the courts [would] interfere with legislative judgments about priority setting.

 

We recognise that the democratic branches (Government and Parliament) must retain the responsibility for economic and social policy, in which the courts lack expertise and have limited institutional competence or authority.

 

It would not be constitutionally appropriate, in our view, for example, for the courts to decide whether a particular standard of living was "adequate", or whether a particular patient should be given priority over another to receive life-saving treatment.

 

 

RESPONSIBILITIES

 

The Report is very uneasy about the government desire to link rights to responsibilities. Associated with this desire is the concept that somehow rights can be forfeited by an individual if he or she does not respect their responsibilities. However important good citizenship may be, rights cannot be lost under any circumstances. As previous stated in the Report, the only qualification for human rights is to be human – and that includes good as well as bad citizens.

 

Right are rights. They cannot be compromised.

 

In the Governance of Britain Green Paper (July 2007) two reasons were given for [the government] being interested in a Bill of Rights and Duties.

 

1.    a Bill of Rights could give people a clear idea of what we can expect from public authorities, and from each other, and a framework for giving practical effect to our common values.

2.    a Bill of Rights 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 Government's position [on the Relationship between Bill of Rights and common law].

 

The Justice Secretary told us [the Joint Committee] of his long-standing desire to ensure that people realise that with rights go responsibilities. He said that he wants to be able to confront people who in his view assert their rights "selfishly", without regard to the rights of others, by pointing to a text which says, yes, you have rights, but you also have responsibilities. He was, he said, "really keen on getting that out specifically."

 

Others were quite trenchant in their criticism of the notion that there should be a Bill of Rights and Responsibilities. We note that the Government also says that an individual's failure to carry out his or her responsibilities does have consequences for that individual's rights.

 

We are left with a distinct unease about the message which is sent by the Government's determination to link rights to responsibilities.

 

We do not accept that educating people about their legal responsibilities is an appropriate function of a Bill of Rights.

 

Civic duty, (see above under PRINCIPLES) is intended to reiterate the idea of responsibilities, which is already implicit in the very concept of rights.

 

 

CITIZENSHIP

 

Bills of Rights protect rights which people have by virtue of being human, not according to their legal status as citizen or non-citizen. It is regrettable that the loose language of the Governance of Britain Green Paper appeared to suggest that some of those rights – such as equality before the law – are associated with citizenship.

 

We call on the Government to decouple the debate about a Bill of Rights from the debate about citizenship and the rights and duties of the citizen,

 

Again the Report finds that the government is seeking to compromise rights by linking it, this time, to the notion of “citizenship”.

 

Clearly New Labour does not subscribe to the ideal expressed in the US Constitution that rights should be “inalienable”.

 

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Current

What is happening now of interest to Civic Republicanism

 

DIARY

 

·        Republic Annual Conference, Saturday, 26th October.

 

See CIVIC REPUBLICAN NEWSLETTER Issue No 7 Friday 17th October 2008 for details of Civic Republican motion to be debated

 

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If you wish to comment on these articles or any other matter emal

peterkellow@republicans.org.uk

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…….Until next week