Ideology, power orientation and policy drag: Explaining the elite politics of Britain's bill of rights debate

Government and Opposition

Volumn 44, Issue 1, 2009, Pages 20-41

  Erdos, David ^a  

^a NONE

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EID: 47249085918     PISSN: 0017257X     EISSN: 14777053     Source Type: Journal    
DOI: 10.1111/j.1477-7053.2008.01274.x     Document Type: Article

References (84)

1. I wish to thank Dr John Parkinson of the University of York and Dr Alan Renwick of the University of Reading for their useful comments. I also acknowledge the funding support of the Economic and Social Research Council (PTA-026-27-1514).
2. C. Tate and T. Vallinder, The Global Expansion of Judicial Power, New York and London, New York University Press, 1995.
3. M. Ignatieff, The Rights Revolution, Toronto, House of Anansi Press, 2000.
4. A. Tant, British Government: The Triumph of Elitism, Aldershot, Dartmouth, 1993, p. 23.
5. A. Lester, Democracy and Individual Rights, Fabian Tract 39, London, Fabian Society, 1968; J. Macdonald, Bill of Rights, London, Liberal Research Department, 1969; Lord Hailsham of St Marylebone (Q. Hogg MP), New Charter: Some Proposals for Constitutional Reform, London, Conservative Political Centre, 1969.
6. I. Dale (ed.), British Political Party Manifestos, 1900-1997, London, Routledge/Politico's Publishing, 2000.
7. Liberal Democrats, Protecting Civil Liberties, Liberal Democrat Policy Briefing 11, available online at: http://www.libdems.org.uk/media/documents/ policies/11CivilLiberties.pdf.
8. David Erdos Aversive Constitutionalism in the Westminster World: The Genesis of the New Zealand Bill of Rights Act International Journal of Constitutional Law, 5 : 3 (2007 p. 343 69.
9. In 1987, Harman and Grant were among only 26 Labour MPs who were willing to back the call for a Bill of Rights made by the Constitutional Reform Centre (an important precursor organization to Charter 88). See File 1/24, Constitutional Reform Centre Archives, London School of Economics.
10. The Times, 'Lord Gardiner - Obituary', 9 January 1990; The Times, 'Lord Jenkins of Hillhead - Obituary', 6 January 2003.
11. P. Evans Harman Case Changes Contempt Law The Times, 14 June 1986 Phillips Bernie Grant: Passionate Leftwing MP and Tireless Anti-Racism Campaigner Guardian, 2 April 2000.
12. See House of Commons, Debates, 23 April 1969, col. 474-84.
13. J. Barnes Lord Lambton - Obituary Daily Telegraph, 2 January 2007.
14. R. Oakley An Heir to the Prince of Wets - David Hunt The Times, 15 March 1990
15. Morton and Knopff, The Charter Revolution, p. 29; Bork, Coercing Virtue, pp. 8-9.
16. K. Joseph, Freedom under the Law, London, Conservative Political Centre, 1975, pp. 10-12.
17. Labour Party, A New Agenda for Democracy, London, Labour Party, 1993, pp. 31-2.
18. M. Howe, 'The Decline of Liberty', in O. Letwin, J. Marenbon and M. Howe, Conservative Debates: Liberty under the Law, London, Politeia, 2002, p. 27.
19. K. Ewing, and C. Gearty, Democracy or a Bill of Rights?, London, Society of Labour Lawyers, 1991.
20. See e.g. Hirschl, Towards Juristocracy.
21. R. Inglehart, Culture Shift in Advanced Industrial Societies, Princeton, Princeton University Press, 1990.
22. A. Peach, A. Rogers, J. Chance and P. Daley, 'Immigration and Ethnicity', in A. Halsey (with J. Webb) (ed.), Twentieth Century British Social Trends, 2nd edn, Basingstoke: Macmillan, 2000, pp. 128-75.
23. Inglehart, Culture Shift in Advanced Industrial Societies, pp. 275 and 287.
24. L. Minkin, The Contentious Alliance: Trade Unions and the Labour Party, Edinburgh, Edinburgh University Press, 1992, pp. 214-16.
25. P. Mandleson and R. Liddle, The Blair Revolution, London, Faber & Faber, 1996, p. 196. Nevertheless, some modernizers in relation to economic policy, notably Roy Hattersley (Labour deputy leader 1984-92), remained vocal and active opponents of legal innovations such as a Bill of Rights. See Minkin, The Contentious Alliance, p. 477.
26. K. J. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe, Oxford, Oxford University Press, 2001.
27. Great Britain, Parliament, House of Lords Select Committee on a Bill of Rights, Minutes of Evidence Taken before Select Committee, London, HMSO, 1977-8, p. 69.
28. Michael Zander, A Bill of Rights?, London: Sweet & Maxwell, 1997, p. 39.
29. Francesca Klug, 'Forward', in Anthony Lester, James Cornford and Ronald Dworkin, A British Bill of Rights, London, Institute of Public Policy Research, 1996, p. vi.
30. T. H. Bingham The European Convention on Human Rights: Time to Incorporate Law Quarterly Review, 109, pp. 390 400.
31. Anthony Lester The Mouse that Roared: The Human Rights Bill 1995 Public Law (Summer 1995 pp. 198 202
32. Hirschl, Towards Juristocracy; K. Ewing, 'The Bill of Rights Debate: Democracy or Juristocracy in Britain', in K. Ewing, C. Gearty and B. Hepple, Human Rights and Labour Law: Essays for Paul O'Higgins, London, Mansell, 1994, pp. 147-87.
33. D. Marsh M. Hall The British Political Tradition: Explaining the Fate of New Labour's Constitutional Reform Agenda British Politics, 2 (2007 pp. 215 38.
34. T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases, Cambridge, Cambridge University Press, 2003, p. 18.
35. Ibid.
36. A. Etzioni Social Norms: Internalization, Persuasion, and History Law and Society Review, 34 : 1 (2000 pp. 157 78.
37. Hailsham, New Charter; and House of Lords, Debates, 26 November 1970, col. 256.
38. R. Blackburn, (ed.), Towards a Constitutional Bill of Rights for the United Kingdom, London, Pinter, 1999, p. 900.
39. It is true that Hailsham himself continued to support a Bill of Rights throughout a good deal of the 1980s (see The Times, 'Hailsham Backs New Rights Bill', 4 February 1986). However, by 1992, even he had changed his mind again (Lord Hailsham, On the Constitution, London, HarperCollins, 1992, p. 105).
40. See e.g. R. v. Lambert (2001) UKHL 37, (2002) 2AC 545 ('reading down' a provision reversing the burden of proof in relation to defence under the 1975 Misuse of Drugs Act so as to require only the defence to produce some evidence that aided its case (a so-called 'evidential burden') upon which the burden of proof would return to the prosecution); and R. v. Offen (2001) 1 WLR 253 ('reading down' mandatory life sentences in 1997 Crime (Sentences) Act so as to ensure that such sentences were only imposed when the offender was judged to constitute a significant risk to the public).
41. See e.g. Westminster City Council v. Haw (2002) All ER (D) 59 (refusing to grant an injunction for obstruction of the highway against anti-war protestor Brian Haw on the basis of the HRA).
42. See R (Q, D, J, M, F and B) v. Secretary of State for the Home Department (2003) EWHC 195 (Admin) (requiring state support be given to all genuinely destitute asylum seekers despite provision in the 2002 Nationality, Immigration and Asylum Act excluding provision of support for asylum seekers whose claims for asylum the home secretary has judged not to have been made as soon as reasonably practicable).
43. See e.g. A v. Secretary of State for the Home Department (2004) UKHL 56 (voiding the UK's derogation from Article 5 (right to liberty) in the ECHR and holding that requiring suspected international terrorists either to leave the country or to be detained was both an absolute violation of right to liberty and impermissibly discriminatory in its effects).
44. See n. 42 above.
45. R. Verkaik Asylum System Flawed, Rules High Court Independent, 20 February 2003.
46. M. Hall Stop This Nonsense, Blair Orders Express, 15 May 2006.
47. Thus, whilst the government's constitutional White Paper of 2007 mooted the possibility of a British Bill of Rights it stressed that 'if specifically British rights were to be added [to the Human Rights Act]. we would need to be certain that their addition would. not restrict the ability of the democratically elected Government to decide upon the way resources are to be deployed in the national interest' (Department for Constitutional Affairs, The Governance of Britain, London, HMSO, 2007, p. 61).
48. Cited in M. Evans, Constitution-Making and the Labour Party, Basingstoke and New York, Palgrave Macmillan, 2003, p. 32.
49. V. Bogdanor, 'Constitutional Reform', in A. Seldon (ed.), The Blair Effect: The Blair Government 1997-2001, London, Little, Brown, 2001, pp. 139-58, p. 155.
50. Marsh and Hall, 'The British Political Tradition', p. 233. See also S. Fielding, The Labour Party: Continuity and Change in the Making of 'New' Labour, Basingstoke, Palgrave Macmillan, 2003, pp. 38-56.
51. Lester et al., A British Bill of Rights.
52. Lester, interview, 18 May 2005. According to Charter 88 documents, Irvine became converted to the idea of a Bill of Rights while working on the Labour Party's Policy Review in the late 1980s ('Charter 88 and Labour', Box 69, Charter 88 Archives, University of Essex). According to S. Weir, co-founder of Charter 88, Smith was also committed to a Bill of Rights prior to the 1990s (Weir, interview, 27 June 2005).
53. K. Ewing and C. Gearty, Freedom Under Thatcher: Civil Liberties in Modern Britain, Oxford, Clarendon Press, 1990, pp. 143-69.
54. Due to party policy the MP had not taken his seat. The ban explicitly excluded reporting dealing with Parliament and elections. See P. Thornton, Decade of Decline: Civil Liberties in the Thatcher Years, London, Liberty, 1989, p. 12.
55. 1988 Local Government Act § 28.
56. P. Hirst, After Thatcher, London, Collins, 1989, p. 45.
57. Ibid.
58. Institute of Public Policy Research, The Constitution of the United Kingdom, London, Institute of Public Policy Research, 1991.
59. F. Klug, A Peoples's Charter: Liberty's Bill of Rights: A Consultation Document, London, National Council for Civil Liberties, 1991.
60. J. Straw A Charter of Rights That Has Shown Itself Wrong The Times, 23 October 1989 Oakley Kinnock Promises to Put Britain in First Division The Times, 2 October 1991.
61. House of Lords, Debates, 11 March 1992, col. 1337.
62. Labour Party, A New Agenda for Democracy, p. 29.
63. Ibid., p. 31.
64. In particular, the pre-election consultation document published by Shadow Home Secretary Jack Straw MP and Paul Boeteng MP reopened the whole question of to what extent ECHR rights should be fully incorporated into UK law and made only the briefest and most non-committal reference to the future drafting of an autochthonous instrument (Labour Party, Bringing Rights Home, London, Labour Party, 1996, p. 14). Labour's 1997 general election manifesto committed the party to 'incorporating' the ECHR but made no mention of any second-stage Bill of Rights process at all (Blackburn, Towards a Constitutional Bill of Rights, p. 960).
65. In addition, a reduction in ideological support for the Bill of Rights within the leadership following the rise of 'New Labour' cannot be entirely discounted. In particular, it should be noted that many figures within New Labour were committed to an approach that appeared to place significantly more emphasis on individual 'responsibilities' rather than 'rights', arguably in a way that sat in tension with commitments to a Bill of Rights and social liberalism more generally. See, for example, the conspicuous addition of responsibility references in the Labour Party's 1996 consultation document on ECHR incorporation (Blackburn, Towards a Constitutional Bill of Rights, p. 960).
66. In this regard, note should be made of the very candid remarks made by then Lord Chancellor Lord Irvine during the HRA's legislative passage (House of Lords, Debates, 29 January 1998, col. 418f).
67. F. Klug Enshrine These Rights: With No Consultation, the Public Didn't Buy into the Human Rights Act. We Can Correct That Now Guardian, 27 June 2005.
68. A. Lester U.K. Acceptance of the Strasbourg Jurisdiction: What Really Went on in Whitehall in 1965 Public Law 1998 pp. 237 353.
69. Geoffrey Marston The United Kingdom's Part in the Preparation of the European Convention on Human Rights International and Comparative Law Quarterly, 42 (1993 pp. 796 826.
70. House of Commons, Debates, 1998, vol. 306, col. 781.
71. D. Wooding Let's Shut Our Door to Terror Says Smith The Sun, 11 October 2001.
72. K. Walker Human Rights Act is Just Wrecking Britain Express, 18 March 2005.
73. D. Cameron, 'Balancing Freedom and Security - A Modern British Bill of Rights', in David Cameron, Social Responsibility, Northampton, Belmont Press, 2007, pp. 153-62.
74. Ibid., p. 156.
75. Ibid., p. 158.
76. Ibid., p. 158.
77. Ibid., p. 159.
78. Ibid., p. 160.
79. Ibid., p. 161.
80. G. Hinsliff Blair Savages Critics Over Threat to Civil Liberties Observer, 23 April 2006.
81. G. Wilson Quota Plan for More Women Tory MPs Daily Telegraph, 21 August 2006.
82. B. Russell Tories Would Repeal "Illiberal" ID Cards Law, Says Davis Independent, 30 June 2005.
83. A. McSmith All Young Offenders Need is Tough Love, Says Cameron Independent, 3 November 2006.
84. D. Grieve, interview, London, 7 March 2007.