Great Britain Finally Makes It to the Eighteenth Century
Barry, Norman, Ideas on Liberty
On October 2, 2000, the Human Rights Act came into force in Britain.1 Given that the United States has had its Bill of Rights since 1791, the French revolutionaries issued the Rights of Man and the Citizen in 1789, and all major European countries have codes that protect fundamental liberties from the ravages of, at first, monarchs and now parliaments, Britain might appear to have been an uncivilized dictatorship for the last 200 years. The lack of a written constitution and separation of powers would normally combine to produce tyranny even in a formal democracy. Yet they clearly haven't in Britain. Why?
To constitutional traditionalists the question is almost impertinent. We don't need newfangled documents, they say; we have the common law, free elections, and the sovereignty of Parliament to protect our fundamental liberties. The Americans and the Europeans only have the rights that are specified in the code or constitution, but under the common law you can do anything except that which is specifically forbidden. F. A. Hayek, an uncritical admirer of that jurisprudence, actually thought that more rights would exist under the common law than under any bill of rights.2 But that was never convincing since statute law has caused much depredation of these unwritten rights and the judiciary is powerless to strike down offending legislation. Even some conservatives began to fear "elective dictatorship" under the Labor Government of the late 1970s.
But it wasn't just statute law that was a threat to liberties. The common law of libel had spontaneously developed to form a real barrier to freedom of speech, and without a constitution and a First Amendment this precious right depended on the unpredictability of the judiciary. A British statute had made most tort cases subject only to a judge for the verdict and damages (so that the country avoided some of the excesses of American tort law), but libel was exempt. In such cases not only do the payments rival American tort cases, but the law constitutes a real inhibition to free expression.3
But the real problem for rights theorists was the existence of sovereignty itself and the absence of serious judicial review.4 It is true that the courts have been diligent in their scrutiny of powers, under acts of Parliament, exercised by ministers. (Indeed, Freddie Laker could only start up his cheap transatlantic airline through a court decision that ended the monopoly of the [then] nationalized airline.) But they could not strike down an act of Parliament. Many conservatives were critical of rights documents for another reason. If a country had a long civil rights tradition (as Britain has) it wouldn't need a document anyway; and if it didn't, such a written constitution would be useless against a dictator. A written document would simply lead to vexatious litigation and involve judicial meddling in public policy.
Human Rights in Britain
Still, Britain has for the last 40 years enjoyed a crypto-protection from a rights-- threatening government. As a signatory to the European Convention on Human Rights (1950), she had always accepted adverse decisions of the European Court of Human Rights (this has nothing to do with the European Union and its Court of Justice) and amended offending domestic legislation accordingly. Britain's record before the European Court of Human Rights in Strasbourg looks pretty bad precisely because there was no remedy available at home.
Thus in a series of cases Britain was condemned for allowing caning in schools, cruel treatment of Irish Republican Army suspects in Northern Ireland, refusing to allow female Commonwealth immigrants to bring their husbands into the country (if the law had also forbidden the entry of wives it would have been legitimate), and many other, fairly minor depredations of rights. The trouble with this approach was its delay and cost-it normally took about five years for a case to be heard at an average price of over $42,000. …