Bill of Rights

The constitutional implications of a British bill of rights. - Justin Santiago

A bill of rights would be likened to a written constitution outlining the positive rights of individuals and private citizens. It details the rights people have with regards to treatment from the State and remedies/protection available. A bill of rights would be likened to a form of law superior to other laws because it originates in an authority higher than the legislature which makes ordinary law and which can only be changed by special procedures. An example of this is the Constitution of the United States which requires not only the approval of Congress but also the the co-operation of other outside bodies (three-fourths of the States need to be in agreement – i.e. 38 of the 50 States have to be in favour of the amendment).

A bill of rights would have several constitutional implications :-

In the United Kingdom, where Parliament is supreme and may create any law that it pleases (by a simple majority vote in
Parliament), the bill of rights could always be amended or repealed by legislature in exactly the same way as any other ordinary Act of Parliament. A bill of rights would go against the doctrine of parliamentary sovereignty and would bind the UK in a way that it may not want.

A bill of rights may not be as flexible as the current situation with its extensive use of conventions which can change over time for example the convention that a Prime Minister has to be chosen from the party with a majority in the House of Commons has come about with the increasing importance of electoral representation in the highest seat in government. It allows for flexibility so that laws and rights move with the times and human rights can become more protected with time. The concept of entrenchment does not exist so these laws in turn do not bind future parliaments thus allowing even more flexibility. There has been a move towards subjecting political processes and decisions to formal hard law regulation that is enforceable by the courts – judicialization – and giving some level of rigidity to positive rights.

A bill of rights would also necessitate a Supreme Court to strike down any law that is in conflict with the Constitution. This would place the doctrine of separation of powers on a firmer footing in the UK. The Executive too would not be able to impinge on the independence of the judiciary. The view propounded by Lord Woolf was that “There was a growing encroachment by the government on judicial independence, warning that judges may need a written constitution to protect themselves from further political interference. This is to ensure that the judiciary can uphold the Rule of Law, prevent government from abusing its powers and to be independent from the government.”