Bill of Rights or Bill of Goods? Britons Ask

Although soapbox orators have made Speaker’s Corner a symbol of free speech for much of the world, their right to hold forth in Hyde Park is not explicitly guaranteed in British law.

Similarly, Britain has no equivalent of the Fifth Amendment right to remain silent. Prosecutors have been allowed to introduce illegally obtained evidence in British trials, and police entrapment is not accepted as a defense in court.

All of this will change, however, when the Labor government’s Human Rights Act goes into effect today, incorporating a 50-year-old European convention on human rights into domestic law and giving Britain what amounts to a bill of rights.

This is a legal revolution for Britain, with far-reaching political implications, say attorneys, civil rights activists and judicial experts. Overnight, centuries-old British case law will be superseded by the new bill outlining the right to life, liberty, free speech and a fair trial, plus prohibitions against torture, slavery and discrimination.

“These are all the sort of rights that America got in its Bill of Rights in the 18th century,” said Julian Knowles, an attorney with Matrix, a law firm specializing in human rights law.

“The idea that people can actually look up what their basic rights are is pretty revolutionary here,” said Francesca Klug, a professor of human rights law at King’s College, London. It is both substantive and symbolic, she said. “It could, in time, be something the country stands for beyond the empire, the queen and other historic things.”

But critics say the change will weaken Britain’s system of parliamentary democracy, shifting power from elected representatives to appointed judges.

Under the Human Rights Act, British courts still will not be able to strike down acts of Parliament in the way that the U.S. Supreme Court can throw out a law passed by Congress. But judges will gain the right to overturn government regulations and to tell Parliament when its laws violate European human rights law.

While that would not be binding on Parliament, most legal experts believe that such a ruling would force Westminster to make changes or risk being taken to court.

“There will be a marked shift in power, and I am opposed to that,” said former Home Secretary Michael Howard, a Conservative member of Parliament. “You can get rid of us. You can’t get rid of judges.”

Many legal observers predict that a more activist role for judges will, in turn, raise pressure on the government to come up with a more open and independent system for seating men and women on the bench. Currently, judges are appointed by the crown on the advice of the Lord Chancellor--the head of the judiciary, who is appointed by the prime minister--and can be removed only because of misconduct or incapacity.

Pinochet Case Raised Questions on Judges

The process of judicial appointments came into question in 1998 during the extradition case of former Chilean dictator Gen. Augusto Pinochet, when it was revealed that one of the Law Lords denying him immunity from prosecution for human rights abuses had failed to disclose his relationship with the rights group Amnesty International.

The case was heard again by another panel of Law Lords, Britain’s highest judges, which broadly upheld it, but the embarrassing and costly misstep prompted many Britons to demand more information on their judges. There seems to be little interest in electing judges, but more demand for an independent appointments board.

The incorporation of European human rights law is also likely to affect what might be called the country’s legal culture--the way in which lawyers make their cases and judges form their decisions. British law schools have taught their students to focus on the letter of the law, but the European Court of Human Rights in Strasbourg, France, has ruled that the purpose or intent of a law also must be taken into account. This means British lawyers and judges should be more inclined to interpret the law.

‘A Field Day for Crackpots’

Critics say the reforms will prove to be what one Scottish judge called “a field day for crackpots, a pain in the neck for judges and a gold mine for lawyers”--not an improvement in the country’s legal system. They fear a deluge of lawsuits on behalf of prisoners, illegal immigrants and possibly even right-wing extremists claiming that their rights have been violated.

They point to the case of former MI5 intelligence officer David Shayler, who returned to Britain from France in August to face charges that he violated the Official Secrets Act with his accusations of corruption in the agency and allegations that British spies plotted to assassinate Libyan leader Col. Moammar Kadafi. His lawyers have said that they will argue that the human rights convention protects Shayler’s freedom of expression.

The Sun tabloid has warned its readers that soldiers will be able to sue if they’re punished for disobeying orders and that it could become illegal for schools to make pupils wear uniforms and for bosses to require employees to wear suits.

Government officials charge that this is scaremongering. Home Secretary Jack Straw noted that in Scotland, where the convention was partly incorporated with devolution in May 1999, cases brought under the human rights convention have largely failed. He said that in the first year, only 17 of the 587 cases brought were won by claimants.

Nonetheless, the Lord Chancellor’s office appears to be bracing for a heavy caseload, having spent $6 million on judicial training and set aside $85 million for additional court sittings and legal aid costs.

“There is some fear the criminal justice system will come grinding to a halt,” said Ivan Hare, a law professor at Cambridge University.

Critics also view the incorporation of European human rights law as a further erosion of British sovereignty. They see it as part of the undesirable process of subjugating the crown to the European Union.

But the human rights convention is not a product of European Union lawmakers in Brussels. It was drafted in large part by Home Office officials after World War II, and many of its tenets, such as the right to a fair trial, come out of an Anglo-American tradition.

The convention was signed by Britain and all members of the Council of Europe--a larger body than the EU--in 1950. The court in Strasbourg has served as a high court for human rights complaints for decades. After running through the British court system, Britons could appeal to Strasbourg, and they often have, bringing about important policy changes back home.

The British government was forced to lift its ban on gays and lesbians serving in the military after the court in Strasbourg ruled last year that it was illegal under the right to privacy and family life.

Caning was banned from all British state schools in 1986 as a result of a case two Scottish mothers took to Strasbourg. And in 1979, the court ruled in a key press freedom case, overturning a British ban on the publication of an investigation by the Sunday Times newspaper on the terrible effects the drug thalidomide had on unborn children.

Many Britons felt that hearing such British cases in Strasbourg amounted to airing the country’s dirty laundry in public, and that if the government was going to be overruled it should be in domestic courts.

As a candidate for prime minister, Tony Blair argued for incorporating the European convention on moral grounds: Britain supported the rights enshrined in the convention it had signed, and so the rights should be embodied in domestic law. Soon after taking office in May 1997, his government passed the Human Rights Act now going into effect.

Britons still will have the right to appeal to Strasbourg, but presumably they will be less inclined to do so if their cases have been decided in Britain on the basis of the European convention.

Courts Will Consider European Case Law

Now, European human rights law will be British law. Courts will have to take European case law into consideration along with British precedents when ruling.

As a result, lawyers and legal experts say, it will be harder to introduce illegal evidence into trials and to draw inferences from a defendant’s decision to remain silent. A proposal by Home Secretary Straw to lift guarantees against “double jeopardy” (being tried twice for the same crime) in some cases could be challenged, and his power to sentence convicted criminals is apt to be curtailed.

Civil rights activists, meanwhile, hope to use the law to prevent employers from snooping on their staffs and to expand employee benefits to gay partners.

Barbara Cohen, a lawyer with the Commission for Racial Equality, said the law could have an effect on the behavior of British police, who frequently have been accused of discrimination in stopping and searching minorities. A defendant might have a case, she said, “if you can show that in your right to liberty and freedom you were treated less fairly than a person of a different race.”

All of these legal changes represent “a grand ideal,” said Peter North, a law professor at Oxford University. “Actually, it’s going to take quite a lot of working out. Quite a lot of heartache and headache.”