A British Bill of Rights: guarantee or threat to freedom?
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In January this year, Harry Miller, a docker from Humberside, was investigated by police after a limerick he retweeted was recorded as a ‘hate incident’ against transgender people. When he questioned why there was an inquiry – since no crime had been committed – the police responded that ‘we need to check your thinking’. The College of Policing’s guidelines state that ‘a hate incident is any incident that a police officer or another member of the public considers to be motivated by hate’, yet ‘no evidence of hate is required’. And while such guidance has no mandate in a court of law, guidelines and legislation are becoming increasingly conflated, posing, some would argue, a threat to freedom.
Such perceived threats to freedom – along with current controversies over issues such as data privacy regulation, smacking bans and other family matters, consent for medical treatment and consumer rights such the ‘gay cakes’ dispute – have prompted a view that we need a British Bill of Rights to clearly set out our rights and protect our freedoms. The discussion has gained momentum with Britain’s decision to leave the EU, which has raised a range of important broader rights and constitutional questions.
The 1998 Human Rights Act – which gave legal effect in the UK to the European Convention on Human Rights – contains rights to life, liberty, security, a fair trial and freedom of expression for all UK citizens. Yet, despite its existence, freedoms such as freedom from detention without trial or free speech have arguably been eroded, justified by national security concerns or the spectre of hate speech. The Harry Miller affair – some argue – symbolises this problem well and raises questions around how effectively the current rights legislation defends the freedoms it claims to uphold. Would a British Bill of Rights provide a better defence of our freedoms? Is such a defence even necessary or are such concerns overblown?
Those in favour argue a British Bill would remove the power of unelected judges in Strasbourg to determine the extent of our freedom to make our own laws and restore ‘common sense’ to the national legal system. Additionally, rights which consider the UK’s needs and traditions might make more sense and prevent the removal of human rights in some instances. But equally, others claim, a Bill risks diluting these rights at the expense of national nuances. There is also a question as to who determines what the Bill contains. The absence of the British public in the process of deciding to revoke Shamima Begum’s UK citizenship, for example, indicates the lack of consultation a British Bill of Rights could receive, and thus, in actuality, deny the agency it aims to restore.
Should the existing human rights in place be replaced? Why bother taking such a risk? Who gets to define British rights, and what determines their makeup? What would a British Bill of Rights look like? What is the demand for a British Bill in response to, and do we need to respond? Is a new model required, one that guarantees social, economic and environmental rights?