A Bill of Rights for the United Kingdom-The Case Against
Browne-Wilkinson, Lord, Texas International Law Journal
It is the fate of those who see difficulties to be cast as opponents. I am in favor of incorporating the European Convention of Human Rights (ECHR) into the domestic law of the United Kingdom so as to form a Bill of Rights, but I foresee some problems. As a result, I have, yet again, been asked to present the case against a Bill of Rights. I do not share the views of the out-and-out opponent, most of whose arguments seem to be mistaken.1 I will therefore concentrate on the points which to me carry weight, most of which come down to the central position which Parliament, and in particular, the House of Commons, enjoy in our constitutional settlement.
It is impossible to understand the case against a Bill of Rights in the United Kingdom without an understanding of its present constitution. First, and most important, the United Kingdom has no written constitution. Although it is said to have an unwritten constitution, most of the rules of this constitution are based not on rules of law but on constitutional conventions observed as a matter of practice but not as a legal requirement. There are two great constitutional documents, the Magna Carta and the Bill of Rights 1688,2 but (with limited exceptions3) they provide constitutional guidelines rather than black letter law. For present purposes, the important conventions are: (1) that the former sovereign power, the monarch as an individual, has surrendered virtually all his powers and is bound to act in accordance with the advice of his Ministers; (2) that the executive powers of the state are vested in the Crown, as a concept, and are exercisable through the Ministers of the Crown; (3) the executive, through its Ministers, is accountable on a daily basis to the House of Commons for the conduct of the affairs of state by the executive; and (4) in consequence, a Government cannot remain in power unless for the time being it can command a majority in Parliament on crucial issues. I stress these points in order to demonstrate that to talk of the "sovereignty of Parliament" simply in terms of Parliament being the legislature is to misunderstand the role of Parliament in the system which the United Kingdom has, for better or worse, adopted. Parliament, or more accurately the House of Commons, is not only the supreme legislature; it ultimately controls the exercise of the powers of the executive because the executive is answerable to it.
The relationship between Parliament and the judiciary accords a similar supremacy to Parliament. Provided that a statute has been passed by both Houses of Parliament and received the Royal Assent (which is a formality), the courts are bound to enforce the law so enacted. A handful of judicial activists have expressed the tentative view that the courts would not be bound to enforce legislation inconsistent with the basic concepts of a democratic state.4 But the overwhelming body of opinion still adheres to the basic concept that the validity of an Act of Parliament cannot be challenged on the grounds that it is unconstitutional or infringes upon fundamental human rights.
As between the private citizen and the executive, the preservation of liberty and fundamental human rights in the United Kingdom depends not upon the individual having rights against the executive but upon the executive having no rights against the individual save to the extent that power to interfere with individual freedom is conferred either by common law or by statute5. The individual citizen enjoys no legal rights as against the legislature, save the democratic right to vote out the Government which passed the offending legislation so as to procure its repeal.
Since 1945, the United Kingdom has superimposed on this internal constitutional settlement two treaty obligations which impinge upon it: first, those relating to the European Union6 and second, the ECHR. This paper is only directly concerned with the latter; but there is a tendency in the United Kingdom to blend them together and, since they are fundamentally different, it is essential to differentiate sharply between them. …