Constitutional Crisis: do we need a British Bill of Rights?

Saturday 2 November, 14:0015:30, ConservatoryLaw Matters

Over the past three years, Britain’s decision to leave the EU has raised important constitutional questions, from whether referendums should be legally binding to the role of judges in political decision making. More recently, the prospect of the government proroguing parliament to get Brexit over the line has led to many warnings of an imminent constitutional crisis. There has also been renewed talk of the need for a British Bill of Rights, as some Remainers believe it could help preserve workers’ rights once protected by the EU.

There is little agreement on even the most basic constitutional questions raised by the idea of a British Bill of Rights. Matters are complicated by the principle of parliamentary sovereignty, which means that no law passed by parliament (with the qualified exception of some international statutes) can have any kind of special status. In order to create a proper Bill of Rights, where the rights have supreme status, the UK constitution would have to be completely overhauled.

Traditionalists see the UK’s uncodified constitution as an enduring source of strength, and something set to be bolstered by the removal of the supremacy of EU law. Many Brexiteers fear that writing down and enshrining rules and regulations would be a regressive step at a time when we could be deregulating and taking back control from unaccountable bureaucrats and judges. In contrast, others see the constitutional headaches produced by Brexit as a good reason to finally create a formal, written constitution that spells out the separation of powers and protects individual rights.

But even if there were a consensus on the need for a British Bill of Rights, the question of what to put in it is equally controversial. Should it protect key individual liberties like free speech and the right to a fair trial, or go further and enshrine government obligations such as free healthcare and social security? How do we decide what is a right and what isn’t? Some argue that such fundamental questions need to be decided by a citizens’ convention or be ratified by referendum, perhaps even with the requirement of a super-majority.

The discussion about a British Bill of Rights raises key philosophical questions about where rights come from. Are rights granted by governments, or do we all have them by virtue of being human? Are rights inalienable, or can they be taken away? Would they belong to British citizens, or would migrants be able to claim them, too? Any British Bill of Rights would have to involve answers to these questions.

Can we trust politicians to cooperate on such a significant piece of legislation, or would a British Bill of Rights be reduced to political cannon fodder? Even if politicians find some common ground and present a draft to the public, would it even be approved? And vitally, is it politicians or the people who should get the final say?