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Human Rights Theory and the Bill of Rights Debate By Cyril Adjei* This article will argue that jurisprudential perspectives can be useful in providing practical possibilities for the reform of human rights [1] in the United Kingdom. It will further be argued that a general failure to advert to jurisprudential theory has contributed to a narrowing of options as to possible reforms by which human rights can be better protected. Essentially, the reform issue has been dominated by the Bill of Rights debate. It is not denied that this debate is important but, by applying certain jurisprudential insights, it is claimed that a legally binding Bill of Rights should not be the sole or main avenue of reform and that there is good reason to doubt whether it would, by itself, be a sufficient form of protection. The article first highlights the extent to which the Bill of Rights debate has monopolised both the thinking and practical proposals of those who argue that human rights are in need of better protection. Secondly, an alternative is presented to a Bill of Rights by drawing on some jurisprudential insights as regards human rights. Thirdly, while sole reliance on a Bill of Rights is questioned, a potential and important role for the device is identified. I. The Bill of Rights monopoly Much has been written about the Bill of Rights debate over the 25 years or so since a ground-breaking article by Anthony Lester, [2] and it remains a topical political issue as well as a subject of much controversy and interest for both commentators and students of public law. [3] Last year also marked the 60th anniversary of the founding of the National Council of Civil Liberties (now called Liberty) and the enactment of a Bill of Rights has become a central objective of that organisation. [4] Undoubtedly, an immense debt is owed to those who have urged reform in this direction. They have heightened the awareness of government and citizens on human rights and the need to protect them. However, like other aspects of public law in the United Kingdom, human rights protection has traditionally been approached with little reference to theory: [5] more precisely, jurisprudential theories of human rights. [6] Illustrative of this approach is the way in which it is assumed that there is broad agreement as to what are human rights, which ones should be protected and how they should be protected. Ultimately, these are jurisprudential questions over which there are considerable differences of opinion. The failure of various attempts to enact a Bill of Rights in the United Kingdom and the objections raised have been centred on one or other of these three issues. In other words, divergent positions in the Bill of Rights debate can be seen to be based on theoretical grounds, which are themselves sites of disagreement.
58 The Modern Law Review Limited 1995 *Doctor of Law, European University Institute, Florence. I would like to thank Luis Maria Diez-Picazo, Avrom Sherr and John Stanton-Ife for their helpful suggestions and comments. [1] The term 'human rights' is used interchangeably with 'civil liberties' in this study because the comments and proposals made here are claimed to be applicable to both.
[2] Democracy and Individual Rights (London: Fabian Tract No 390, 1968).
[3] As well as constituting a core subject in public law and constitutional law syllabuses, it has produced a voluminous body of literature: for example, Scarman, English Law: The New Dimension (London: Stevens, 1974); Wallington and McBride, Civil Liberties anda Bill of Rights (London: Cobden Trust, 1976); Campbell (ed), Do We Need a Bill of Rights? (London: Temple Smith, 1980); Jaconelli, Enacting a Bill of Rights (Oxford: Clarendon Press, 1980); Zander, A Bill of Rights (London: Sweet & Maxwell, 1985); and Dworkin, A Bill of Rights for Britain (London: Chatto Windus, 1990).
[4] See Liberty, A People's Charter: Liberty's Bill of Rights: A Consultation Document (London: Liberty,1991). However, Liberty's most recent proposal is for a Bill of Rights enacted via an ordinary statute, which would provide that the Bill would take precedence over subsequent Acts of Parliament, unless there was an express 'notwithstanding' clause, along similar lines to that in the Canadian Charter of Fundamental Rights and Freedoms (see Klug and Wadham, 'The "democratic" entrenchment of a Bill of Rights: Liberty's proposals' (1993) PL 579. The Modem Law Review Limited 1995 (MLR 58:1, January). Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 tJF and 238 Main Street, Cambridge, MA 02142, USA. 17
[5] For recent criticisms and an analysis of this approach to public law, see Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992) and, as regards English administrative law, see Harlow, 'Changing the Mindset: The Place of Theory in English Administrative Law' (1994) 14 OJLS 419.
[6] The term 'jurisprudential theory,' in the present context, refers to what Harlow, op cit n 5, p 422, has recently called 'deep theory': that is, an explanation of the function of human rights in the United Kingdom, which includes the value systems and understandings that underpin them. These value systems are derived from a 'background' political theory, which in this country is one that is strongly conditioned by a doctrine of Parliamentary sovereignty. My argument is that to improve the legal protection of human rights in the United Kingdom, resort must be had to a 'deep theory' of human rights. However, this 'deep theory' is not simply a description, but is also 'an explicit advocacy' of a jurisprudential theory of human rights: a 'foreground theory' (ibid pp 422- 423).
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