The Bill of Rights, 1689 and 1998

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* We are on the verge of having a Bill of Rights. Parliament is about to incorporate the European Convention on Human Rights into British law. No longer will people have to make the long and expensive trek to Strasbourg to uphold their civil liberties. Resonant historical parallels are being invoked. `Britain's first Bill of Rights for 300 years', pronounced The Times. `Not since 1689 ...' said Lord Lester.

There's a puzzle here. If England invented the idea of a `Bill of Rights', why has it been necessary to start all over again? When Mrs Thatcher was asked about a Bill of Rights, she said `we already have one'. What she overlooked was that the 1689 Bill is of scarcely any use now. It did not primarily aim to enshrine individual rights, but rather to assert parliamentary supremacy over a wayward monarch. It was a catalogue of James II's arbitrary actions. The Bill decreed that parliaments should be convened frequently and that their proceedings should be immune from interference, that elections should be free, and that taxation should be subject to parliamentary control. Some clauses are now only of historical interest, such as the abolition of the Ecclesiastical Commission; some soon became dead letters: the forbidding of a `standing army' was immediately followed by William III's creation of a large and permanent army. The clauses barring `popish princes' from the crown and specifying that `Protestants may have arms', reveal the anti-Catholic essence of the `Glorious Revolution' and the limits of seventeenth-century religious toleration, a dimension which rendered the tercentennial celebrations in 1988 somewhat muted. The fact is that as a charter of English freedoms the 1689 Bill never had much bite, though it joined the Magna Carta and the Petition of Right in the Whig litany.

Yet perhaps this sceptical interpretation should not be taken too far. The 1689 Bill was the ancestor of subsequent American and French declarations, and ultimately of the United Nations' Universal Declaration of Human Rights (1948) and the European Convention (1950). The Americans picked up some clauses from 1689 -- jury trials, the right to `bear arms', and the outlawing of excessive bail and of `cruel and unusual punishments'. Undoubtedly the last item provides the strongest continuous thread, `cruel, inhuman or degrading punishments' being banned under Article 5 of the Universal Declaration and Article 3 of the European Convention.

The 1689 Bill is still occasionally cited in British courts. In 1981 and 1987 the `punishments' clause was invoked in cases concerning the treatment of prisoners. The clause striking down James II's `dispensing power' was deployed against the Inland Revenue in 1979. Some invocations are curiously paradoxical. In 1993, a judge halted the libel case brought by the `cash for questions' MP, Neil Hamilton, against The Guardian, after ruling that the Bill of Rights, which bans the courts from questioning parliamentary proceedings, would prevent The Guardian from getting a fair trial.

But, aside from such echoes from 1689, jurists and civil rights campaigners have had to start again. Charter 88 was founded in 1988 on the occasion of the Revolution's tercentenary. These new Chartists declare that `the events of 1688 only shifted the absolute power of the monarch into the hands of the parliamentary oligarchy'. Charter 88 lobbies for a written constitution and is one of the most dynamic political campaigns of the 1990s, now having 70,000 signatories.

The Daily Telegraph is unconvinced, preferring Thatcher's scepticism: `Our system has been shown to work over 300 years'; the Charter 88 `cranks' are anglophobic breast-beaters, who imagine our liberties are at risk and who plan to install their `politically correct nostrums'. Yet, the signs are that our political culture has shifted. The climate for acceptance of a new Bill of Rights is much warmer than hitherto, and resistance to the notion is waning. …