The European Convention on Human Rights is at once a statement of the obvious and yet a truly remarkable document.
Read to the average trucking-stop diner (the Australian version of “”the man on the Clapham omnibus” it would evoke a response something like: “”Yeah, it’s a bit long-winded but it all sounds fair enough to me, mate.”
This week, the convention became incorporated in English statute law. It means anyone in Britain can call upon its clauses to prevent their rights being trampled upon. Until now, people in Britain had to exhaust all English court appeals before going to the European Court to get their rights enforced. Until now it has meant British courts could by and large continue to enforce laws that, while on the whole fairly good, occasionally trampled on rights to freedom of expression and fair and open trial.
It will be an interesting time in the British courts in the next few years as judges have to go beyond the strict letter of the volumes of law enacted by Parliament and the many volumes of precedents of earlier cases and instead have a weather eye to a lofty bill of rights that fits on three or four sheets of A4.
The convention has just 13 core clauses setting out rights to: life, no torture, no slavery or forced labour, liberty and security from arrest except by due process of law; fair trial; no punishment without law; privacy and family life; freedom of thought, conscience and religion, freedom of expression; free assembly and association; to marry; to freely associate and to be free from discrimination on grounds of sex, race, religion etc. There are obvious exceptions for law and order, military service, illegal immigrants.
The fact Britain has now incorporated it into its law is a huge change.
The British legal and constitutional structure works from the top down. In theory God bestows rulership rights on the monarch – the divine right of kings. Over the years the monarch has in practice bestowed the legislative function to the elected Parliament, but still has to sign Acts of Parliament into law before they become law. The monarch has also bestow the function of resolving disputes to the courts. Incidentally, the 1689 Bill of Rights in England (Subs: 1689 and ENGLAND) was not about human rights but about the monarch bestowing the power to tax to the Parliament – ramifications of which are being felt even now in the ACT with the Bruce Stadium funding question.
Despite the monarch yielding some power, however, the theory and structure of the British system is one where sovereignty (and power) comes from God down, not from the people up. This why the referendum is a rare event and anyway never binding in the British constitutional set-up.
In the late 18th century the French and American revolutions (and later revolutions elsewhere in Europe) put in place a different system. It was one where sovereignty came from the people – one in which individuals had certain inalienable rights which kings could not take away.
In bringing the European Convention on Human Rights into British law, Britain has taken a decisive step towards the latter system. From now, individuals in Britain can hold up the convention and enforce their rights against the Executive Government and against the existing body of judge-made law and earlier statute law. Unfortunately, Britain did not go the whole way, and perhaps could not go the whole way without major constitutional change. It did not entrench the European Convention so that it could not be overridden by future Acts of Parliament. We have such a mechanism in the Australian Constitution. Britain did not even set up a mechanism for approval by a, say, two-thirds majority of Parliament and/or referendum and a requirement that any undoing of the convention must also meet that majority. We have such a mechanism in the ACT.
At least, though, Britain moved to a situation where individuals can invoke the Convention against existing law.
So where does this leave Australia among western democracies?
Australia and New Zealand are among the very few democracies that do not have some form of Bill of Rights.
Australia’s Constitution does grant any enforceable individual rights. The limited rights laid down there are implied or derive from provisions that lay out the limits of legislative powers. For example, our Constitution says the Parliament may not legislate to establish a religion. It does not provide for a general right to freedom of religion such as found in the European Convention. The Constitution provides a legislative power to acquire property on just terms. It does not provide a general right to life, liberty and enjoyment property and so on, unlike the American Constitution. It provides a procedure for electing parliament it does not grant a right to vote.
The American Constitution’s Bill of Rights suffers from a couple of very foolish clauses, like the right to bear arms and the right to trial by jury of all matters involving more than $20. the lesson there is not to abandon Bills of Rights, but to get them right the in first place.
Here the Canadian experience is instructive. In the early 1980s (like Britain now), Canada found that governments and legislatures could not be trusted to uphold rights – even democratically elected legislatures and governments. Canada, under the Prime Minister Pierre Trudeau (who died in the same week as Britain enacted the European Convention) began the move to having a Bill of Rights. At first it was enacted as an ordinary piece of legislation capable of being overridden by later legislation passed by an ordinary parliamentary majority. After a trial to see how the judges would interpret it and to see whether the nation’s crazies would turn the Canadian legal world into an unworkable gridlock, Canadians realised the sky had not fallen in and entrenched it in their Constitution.
It is a simple, elegant Bill of Rights containing seven clauses that individuals may invoke the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived of them except by due process of law; the right of the individual to equality before the law and the protection of the law; and freedom of religion; speech; assembly and association; and freedom of the press. Seven further clauses are rights benchmarks against which legislation is interpreted.
How a Bill of Rights would pan out for Australia (and how it will pan out for Britain) is a matter for conjecture. In Britain, it has been suggested juries might have to give reasons for making their decisions and defamation law might have to give a little towards freedom of expression rather than presuming everything published is false and damaging until proven to the contrary.
A lot would depend on how the judges interpret it and how much baggage they carry from the existing system.
Bills of Rights are usually written in plain language. Of themselves they are no guarantee, as pre-1989 Eastern bloc experience attests. But in an environment with a strong rule-of-law tradition they have value. They can prevent abuse of power by the Executive and its bureaucrats and legislatures against individuals. Yes; that happens in Australia, as former Prime Minister Malcolm Fraser recently pointed out. They can help the judiciary ensure the abuse does not occur.