In the Media

Doing your duty

PUBLISHED December 1, 2006

As MPs debate the value of the human rights act, roger smith argues that while a bill of rights extolling civil responsibility is theoretically attractive, it should build, not reduce rights overall

The parliamentary home affairs and constitutional affairs committees have recently combined to hear a day of evidence on the Human Rights Act. In the event, only one witness actually opposed it.

The dissenter was Jonathan Fisher QC, who made two points: ?First, I suggest that the European convention is not a sufficiently sound instrument to protect human rights as we recognise them in Britain today. In some areas, it is too strong and in other areas it is too weak, embodying minimum standards directed at the lowest threshold. Secondly, I suggest the convention is a fundamentally flawed instrument because it omits any notion of civil obligation?.

Mr Fisher?s comments followed arguments that he had previously published in a pamphlet, A British Bill of Rights and Obligations, for the Conservative Liberty Forum. These arguments merit attention, although they appear somewhat convoluted. The European convention, he wants to argue, is too mealy-mouthed on some fundamental English freedoms, such as the right to protest or to jury trial. He wants to extend protection to reduce money-laundering reporting, obstruct the extradition of UK nationals, and to expand ?the right of self-defence of a person?s family or home?.

This illustrates a difficulty. There may be little consensus about these particular rights and even less about the limitations that presumably everyone would place on them. In any event, none should surely be absolute rights incapable of qualification or limitation in any circumstances.

Mr Fisher argues that, in fact, all rights ? even those now regarded as absolute, such as protection against torture ? should be qualified by consideration of whether someone has upheld relevant rights and duties. Conduct should go ?into the melting pot? of factors to be considered. And, with an unexpected twist, Mr Fisher argues that such rights as are left in this balancing process should be ?softly entrenched? against amendment ? by the expedient of repealing the Parliament Acts for this purpose.

He proposes that any amendment to his Bill of rights and obligations would require the positive approval vote of the House of Lords.

In his pamphlet, Mr Fisher expands on his ideas of duties and responsibilities. They could, he says, be based on the US Declaration on The Rights and Duties of Man. These purport to impose such duties as to work, pay taxes, vote, obey the law, co-operate with the state with respect to social security and taxes and to ?acquire at least an elementary education?. These are all highly reasonable aspirations of a nation?s inhabitants but, if allowed as pre-conditions for the consideration of their rights, they would potentially exclude large sections of the population ? not least all those who dropped out of primary school, were unemployed, or who had committed a crime.

The general notion of a greater concern with duties and responsibilities has some contemporary political traction. In his pamphlet, Mr Fisher also extols a draft ?Universal Declaration of Human Responsibilities? proposed by the InterAction Council in 1997. This council?s members are former heads of state of somewhat mixed provenance ? the-left-of-centre former US President Jimmy Carter rubbing shoulders with Singapore?s dictatorial Lee Kuan Yew. Its declaration was endorsed by a couple of dozen international luminaries, the best known of whom are probably Henry Kissinger and Robert McNamara, neither of whom is usually viewed as a campaigning rights activist. Even so, InterAction?s draft declaration is what it says on the tin: declaratory. It lists responsibilities while insisting on ?the equal and inalienable rights of all members of the human family?. Mr Fisher argues, on the contrary, that all human rights are indeed alienable ? they can be forfeited for bad conduct.

The message that John Denham MP, chairman of the Commons home affairs committee, should take from the day of evidence is that the Human Rights Act is, contrary to some media opinion, working rather well. What is more, given our membership of the Council of Europe and the EU, almost all alternatives are legally, diplomatically and politically incoherent. That is not to say that responsibilities should not be better promoted (for example, in some form of preamble to the Act) ? just not as a backhand way of attacking rights.

One of the best formulations of the appropriate relationship between rights and responsibilities comes from the thoughtful Islamic scholar Tariq Ramadan, whose right to take up employment at Notre Dame University has been restricted by the US administration for no apparent reason beyond stupidity and prejudice. His line on the Danish cartoon controversy is that: ?There are no legal limits to free speech, but there are civil limits? it is a matter of civil responsibility and wisdom, not a question of legality and rights.?

By all means, let us develop the concept of human responsibilities and civic wisdom but within the envelope of the human rights (very few of them absolute) that we are all owed by the state.

Let us hope that the parliamentarians got the message. The case for a British Bill of rights and obligations can be made but building on, not reducing, the rights as are set out in the convention.

Roger Smith is director of the law reform and human rights organisation Justice