The Determination to Enhance ‘Public Safety’ in the Bill of Rights

It was in the Labour Government's ‘Governance of Britain’ Green Paper that the relationship between the potential Bill Of Rights and Duties and ‘public safety’ was introduced:

The government itself recognized in its review last year of the implementation of the Human Rights Act,3 the importance which must attach to public safety and ensuring that government agencies accord appropriate priority to protection of the public when balancing rights. A Bill of Rights and Duties might provide a means of giving greater clarity and legislative force to this commitment. (Ministry of Justice 2007: 61)

To add to this, Jack Straw stipulated in his Mackenzie-Stuart lecture that, ‘Britain faces a new set of challenges, both internationally and at home, which requires us to look again at our mechanisms of rights’ (2007a: 2). From this statement and the Green Paper we can see that the Bill of Rights and Responsibilities, was a component in Straw's wider project of rebalancing rights in favour of public security. According to Liberty, statements such as these undermine the Human Rights Act by suggesting, as David Cameron has above, that in the Act insufficient regard is being paid to public safety and national security (Russell 2007: 9). Liberty did not accept these criticisms of the Human Rights Act. They stated that:

… public protection is at the core of the human rights framework. Not only do rights instruments like the 1998 Act play a vital role in protecting individuals against abuses by the state; they also require the state to take positive steps to protect the rights of those within their jurisdiction, including from the actions of other private individuals. The Human Rights Act requires criminal laws to be put in place to protect people from committing serious offences like murder, terrorism and rape. (Russell 2007: 10)

Liberty also reminded us that most of the rights and the Human Rights Act are not absolute and that ‘one of the legitimate reasons for placing proportionate legal restrictions on the rights protected is public safety’ (Russell 2007: 10). The JCHR were also opposed to the Labour Government's ambitions for rebalancing the Human Rights Act in favour of ‘public safety’. In their 2006 report ‘The Human Rights Act: the DCA and Home Office Reviews’, the JCHR demonstrated ‘that there was no evidence that such an amendment to the human rights framework was necessary’ (2006: 35–9). In their ‘Bill of Rights for the UK?’ report of 2008, the JCHR stated that ‘a surprising number of witnesses in our inquiry were opposed to a Bill Of Rights on this ground alone: they were concerned that the real motivation behind the proposal was to dilute the protections for human rights already contained in the Human Rights Act’ (2008: 19). The JCHR, in an attempt to reassure these witnesses and to send a clear message, placed the following in bold in their report:

In our view it is imperative that the Human Rights Act not be diluted in any way in the process of adopting a Bill of Rights. Not only must there be no attempt to redefine the rights themselves, for example, by attempting to make public safety or security the foundational value which trumps all others, but there must be no question of weakening the existing machinery of the Human Rights Act for the protection of convention rights. (Joint Committee on Human Rights 2008: 20)

The JCHR's recommendation in the 2008 and 2006 reports was that the Labour Government should start acting consistently with regards to the Human Rights Act, if they were to successfully build on ‘its achievements’. That is according to the JCHR, the Ministry of Justice cannot on the one hand talk about building upon the achievements of the Human Rights Act, whilst also pandering to a hostile media's characterization of the Human Rights Act ‘as some sort of terrorists’ charter’ (Straw, in Joint Committee on Human Rights 2008: 20). Straw admitted to the JCHR that addressing this characterization of the Human Rights Act and the public's misperceptions was ‘part of the framework for the current debate’ on the Bill of Rights and Responsibilities (Straw, in Joint Committee on Human Rights 2008: 20). The JCHR's consistent position on the Labour Government's attempts to correct public misperceptions about the current regime of human rights protections under the Human Rights Act was that ‘the government should seek proactively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true’ (Joint Committee on Human Rights 2008: 14). The Labour Government clearly could not have it both (or all) ways. According to the JCHR, the Labour Government could not attempt to correct/rebalance and thus undermine the Human Rights Act, while also attempting to use or (mis)use the Human Rights Act as a stepping stone to a potential Bill of Rights. In many ways the rebalancing of human rights in the name of public safety (McGhee 2010) forms the background to the unfolding tension to be explored below with regards to debates on responsibilities and citizenship and the politics of human rights. The lesson of the ‘war on terrorism’ is that the distinction between citizens and foreign nationals (especially foreign national terror suspects) is that the former are considered to be ‘rights bearing’ (although increasingly this is conditional on discharging the responsibilities of citizenship) and the latter, in many ways, are not.

The Explicit Articulation of Responsibilities in the Bill of Rights

The presentation of the potential Bill of Rights as a ‘next stage’ in the evolution of Britain's human rights culture, as Michael Wills suggested, was all about responsibilities, or more accurately the better articulation of ‘the balance between rights to which we are entitled and obligations we owe each other’ (2008a: 2). The better articulation of rights and responsibilities is not new. The alleged responsibilities deficit in Britain was a feature of New Labour's moral communitarianism as far back as 1995 when, for example, Tony Blair's lecture on ‘the rights we enjoy reflect the duties we owe’ depicted what Driver and Martell refer to as the new Labour perception that in the post-war years Britain was eager to extend the scope of individual rights without any corresponding concern for the responsibilities attached to rights and the duties individuals owe as members of families and communities (Driver 1998: 130). To overcome the responsibilities deficit, Labour's communitarianism was, according to Driver and Martell, strongly laced with ideas of reciprocity and strong values (1998: 118). Blair wrote, ‘the only way to rebuild social order and stability is through strong values, socially shared, inculcated through individuals, family, government and institutions of civil society’ (in Driver 1998: 118–19). For Driver and Martell, New Labour's communitarianism consists of the promotion of a ‘new social morality’ (1998: 119) founded on ‘shared values’. In an article written in 1997, Driver and Martell, describe New Labour as being torn between what they describe as conformist and pluralist versions of communitarianism (1997: 27). I think this is an accurate description of ‘early’ New Labour. However, if we fast-forward from the early days of New Labour to Tony Blair's last year in office as Prime Minister in the post-7/7 context, we see that rather than being ‘torn’ between conformist and pluralist versions of communitarianism, the Labour Government had shifted into an explicitly conformist and morally prescriptive (integration) discourse (McGhee 2008). For example, the 7/7 bombers, according to Blair, were ‘integrated’ at one level in terms of lifestyle and work (2006: 5), but not integrated fully:

Integration is not about culture or lifestyle. It is about values. It is about integrating at the point of shared, common unifying British values. It isn't about what defines us as people, but as citizens, the rights and duties that go with being a member of our society. (Blair 2006: 5)

Citizenship, responsibilities and duties are all intermingled in Blair's ‘you are either with us or with the terrorists’ conditional approach to integration. When it comes to the Labour Government's promotion of the Bill of Rights and Responsibilities, the communitarian concerns with regards to the alleged responsibilities deficit and the attempt to make the acceptance and sharing of particular values a condition of citizenship are a central feature. Schinkel's analysis of the shifting weight between what he describes as the formal aspects and moral aspects of citizenship in Dutch integration discourse is a useful comparison for examining a similar shift in emphasis in contemporary Britain. Formal citizenship, for Schinkel, is associated with our ‘juridically codified rights and duties of citizen-members of states’ and moral citizenship is ‘a counterfactual ideal of citizen-participation’ associated with an extra-legal and normative concept of ‘the good citizen’ (2008: 17). Although Schinkel is careful to point out that every formal conception of citizenship is going to entail aspects of moral citizenship, the distinction he is making is analytical and serves the purpose of exploring the relative weight given to formal or moral aspects of citizenship (2008: 18). If we move our attention away from ‘integration’ strategies and discourses for a moment (we will return to Schinkel's analysis of Dutch citizenship and integration and the Dutch Charter of Responsible Citizenship below) to once again focus on the central focus of this chapter (the Bill of Rights and Responsibilities), we shall see that when it comes to the Labour Government's and the Conservative Opposition's promotion of the Bill of Rights and Responsibilities in the UK, the relative weight or emphasis between the formal and the moral has shifted to the latter.

There are problems with this ambition (coming from both David Cameron's Conservative Opposition party, and from Jack Straw and the Ministry of Justice) to better articulate the responsibilities that come with rights, and attempting to use the Bill of Rights and Responsibilities to reverse the alleged responsibilities deficit in contemporary Britain. For example, David Cameron, as noted above, suggested we need ‘a modern Bill of Rights that … balances rights with responsibilities’ and which ‘spells out the fundamental duties and responsibilities of people living in this country’ (Cameron 2006: 2); whilst in the ‘Governance of Britain’ Green Paper it was stated that a ‘Bill of Rights and Duties could provide explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others’ (Ministry of Justice 2007: 61). Liberty challenged this portrayal of a culture of rights without responsibilities in contemporary Britain. As with their criticism of the Labour Government's pandering to the misperception that individuals’ rights are being prioritized over ‘public safety’, Liberty reminded us that with few exceptions the rights in the Human Rights Act are not absolute. This means that individuals’ rights can be restricted for a number of legitimate reasons, the result being that it is permissible to make laws which restrict a person's rights in order to ensure compliance with individuals’ responsibilities to society (Russell 2007: 8). At the same time Liberty remind us that there is a mass of criminal and civil laws that have existed for centuries that ensure that people act in accordance with their responsibilities to the state and other individuals (Russell 2007: 8). These laws already operate to punish those who breach the criminal law and provide redress where a person violates civil law responsibilities to others, that is by acting negligently (Russell 2007: 8). The problem, according to Liberty, is that David Cameron and Jack Straw's ambitions of trying to make these implicit and embedded responsibilities, obligations and duties explicit and ‘easily understood’ (Ministry of Justice 2007: 54) by the public and new citizens alike could be perceived as making individual rights ‘in some way contingent upon compliance with one's responsibilities’ (Russell 2007: 9). It is at this point where the civic politics of responsibilities, duties and obligations and the universality of human rights protections are brought into tension. The JCHR had similar concerns to Liberty. It is the potential for undermining the principle of universality through the overemphasis of the conditionality of rights (on the contingency that duties or responsibilities are performed) that resulted in the JCHR stating: ‘rights cannot be contingent on performing duties or responsibilities’ (2008: 6). According to the JCHR, a number of the witnesses called to their inquiry expressed concerns that the ‘inclusion of responsibilities in the Bill of Rights might mean that only the “deserving” would have full rights entitlement’ (2008: 69). Jack Straw told the JCHR that the longstanding desire to ensure that people realize that with rights come responsibilities was ‘the first reason why the government is interested in moving beyond the Human Rights Act to a Bill of Rights’ (Joint Committee on Human Rights 2008: 68). Straw informed the JCHR that he wanted to be able to confront people who, in his view, have asserted their rights ‘selfishly’, that is without regard to the rights of others, with a text which says ‘Yes, you have rights, but you also have responsibilities’. Straw stipulated to the JCHR that he was ‘really keen on getting that out specifically’ (Straw, in Joint Committee on Human Rights 2008: 68). The JCHR recognized the importance of responsibilities to the debates on the new Bill of Rights, but suggested that the Labour Government's thinking about the relationship between rights and responsibilities was ‘extremely muddled’ (2008: 71). More than that, the Labour Government had failed to reconcile their desire to increase a sense of responsibility in British citizens with the principles of universality in human rights conventions. The JCHR's position, as noted above, was unequivocal on the matter of the relationship between responsibilities and rights: ‘human rights are rights as people enjoy by virtue of being human: they cannot be made contingent on the prior fulfilment of responsibilities’ (Joint Committee on Human Rights 2008: 71).

A Bill of Rights for British Citizens?

At this stage it would be helpful to acknowledge the parallel and interdependent process that is to accompany the potential Bill of Rights, namely the creation of a British Statement of Values. In many ways, the Labour Government's ‘on and off’ support of ‘human rights’ (or more accurately the Human Rights Act) resulted in the relationship between the British Statement of Values and the Bill of Rights becoming increasingly unclear. Some members of the recent Labour Government, such as former Home Secretary Jacqui Smith, seemed to be engaged in the process of uncoupling the British Statement of Values from the Bill of Rights in order to get their authoritarian ‘accept and share’ British values ‘or else’ message across. For this reason it is important to stipulate that the Labour Government's intention behind suggesting the formulation of a British Statement of Values was that this process, in particular the national debate that was promised on shared values, would inform and underwrite the Bill of Rights. According to the JCHR, the intention was that the Labour Government's consultation on ‘the values the British people consider to be fundamental’ would be used to form the preamble to the Bill of Rights (Joint Committee on Human Rights 2008: 34).

The JCHR have particular problems with the term ‘Britishness’ and the use of ‘British’ as a prefix in the title for the proposed Bill of Rights. The JCHR consciously removed the prefix ‘British’ to both the Statement of Values and the Bill of Rights. The JCHR anticipated difficulties associated with establishing a Bill of Rights on the basis of a statement of ‘British’ values, the main reason being that this label ‘may or may not be accepted’ by those people ‘who consider themselves to be, for example, “English”, “Scottish”, “Irish” or “Welsh”, but not “British”’ (Joint Committee on Human Rights 2008: 29). Jack Straw's justification for employing the adjective ‘British’ to the potential ‘statement of values’ and the Bill of Rights, in his witness statement to the JCHR, can be described as yet another strategy to head off (whilst also colluding with) hostile media reporting and public attitudes with regards to human rights:

The ‘British’ adjective in my view is important because there is the implication in the air that these human rights which equal in some people's minds, not mine or yours, a terrorists’ and criminals’ charter, are a European imposition and by Europe it is meant ‘the Other’, that somehow we are not part of Europe. I think it is important that we break that down. (Straw, in Joint Committee on Human Rights 2008: 29)

The JCHR took an alternative view, as noted above. They saw the adjective ‘British’ as being counterproductive in that it could be detrimental to social cohesion and could be a source of division (2008: 29). They also viewed the adjective ‘British’ as suggesting a link with British citizenship, which for many of the rights within the Bill of Rights would be inappropriate.4 In the ‘Governance of Britain’ Green Paper the development of a British Statement of Values was justified in terms of strengthening citizenship. In this Green Paper, developing a sense of Britishness was seen as being the key for revitalizing British citizenship. This amounted to a strategy of recognizing the many different aspects of our social identities and value systems in order to ultimately trump other value systems and identities in relation to our ‘British’ identities and shared values:

It is important to be clear about what it means to be British, what it means to be part of British society and, crucially, to be resolute in making the point that what comes with that is the set of values which have not just to be shared but also accepted. There is room to celebrate multiple and different identities, but none of these identities should take precedence over the core Democratic values that define what it means to be British. (Ministry of Justice 2007: 57)

The connection between British citizenship, the British Statement of Values and the potential British Bill of Rights and Responsibilities was made by Michael Wills, the former Justice Minister, who suggested that the stepping stone between the Human Rights Act and the British Bill of Rights and Responsibilities was the formulation of a British Statement of Values which would explicitly articulate previously implicit responsibilities and would also explicitly express ‘our national identity’:

Our national identity matters … it was only the years after the Second World War that we went through a period of introspection, lacking in self-confidence when such discussions were often regarded with embarrassment. We are now far more successful and self-confident as a country and the government believes the time is right to find a way to express who we believe ourselves to be in a way that is inclusive and commands broad support. (Wills 2008a: 3)

For Wills this is a pre-emptive strategy, in terms of the Labour Government getting in there first, facilitating a national debate before this process could be overtaken by ‘others’:

If we don't do this, others will. National identity matters to people. If there isn't a national process to discuss it, in ways that are inclusive of everyone on these islands, then there is a risk that this territory will be colonized by sectarian and sometimes even poisonous views. (Wills 2008a: 3)

Thus, the potential discussion of the Statement of Values and the Bill of Rights was bound up with pre-emptive-defensive or reflexive-corrective motivations associated with a ‘getting in there first’ mentality or an undoing the mistakes of the past reflexive mentality.

Giving the process of formulating a Statement of Values and a Bill of Rights and Responsibilities a ‘British spin’ has other consequences. There were concerns, discussed above concerning the Labour Government's attempt to rebalance human rights protections to prioritize the security of citizens and their attempts to better articulate the relationship between rights and responsibilities; their emphasis on ‘Britishness’ and the addition of the prefix ‘British’ to the Statement of Values and the Bill of Rights sent the wrong messages, and once again flew in the face of universality (Russell 2007: 5). Liberty viewed the emphasis on Britishness, as suggesting that the ‘British’ Bill of Rights would only protect the rights of British people. They viewed the prefix ‘British’ as yet another ill-advised response to for example, the criticisms that launched by David Cameron that the Human Rights Act protects the rights of foreign citizens to the perceived detriment of British citizens (Russell 2007: 5). Once again the tension between citizenship and human rights – and in particular the distinction between those who should and should not enjoy human rights protections, or more accurately whose human rights should be considered first and foremost – emerges here. What these debates lead to is a particular frame-setting discourse that could have profound effects on ‘non-citizens’, who seem to be ‘wrongly excluded from consideration’ (Fraser 2008: 6). This amounts to what Nancy Fraser would call ‘misframing’ which can result ‘in a kind of “political death”’ (2008: 20) for individuals and groups who find themselves outside the frame. In response to misframing, Liberty reminded us once again of the universality principle that ‘people have basic rights by virtue of being human’ (Russell 2007: 5). Liberty attempted to block any move that would prioritize the rights of the citizenry over the rights of others (e.g. Third Country, non-EU foreign nationals) who are resident in the UK in the name of preventing further human rights abuses from occurring in the UK. They cited the results of recent misframing practices to support their opposition ‘as the Belmarsh internment policy and treatment of asylum seekers have demonstrated, it is indeed non-citizens that are most often in need of human rights protections’ (Russell 2007: 5). They suggested that a Bill of Rights and a Statement of Values should not be used to shore up a sense of ‘Britishness’ if the result of this is that such a process is perceived as a means to prioritize the rights of British citizens first. The JCHR were also opposed to the British prefix with regards to the Statement of Values and Bill of Rights. The JCHR recognized that the formulation of a Bill of Rights was a significant event of ‘national definition’ (2008: 28). According to the JCHR, a national Bill of Rights was an expression of national identity and in the process of drawing up a Bill of Rights ‘invites reflection about what it is that “Binds us together as a nation”’ (2008: 28). However, the JCHR was not persuaded that the term ‘British’ for the Bill of Rights was a helpful description of the Labour Government's proposal. The JCHR's primary concern was that giving the Bill of Rights the prefix ‘British’ could encourage an inward-looking view that human rights were linked to nationality or citizenship rather than being universal in their application (Joint Committee on Human Rights 2008: 30). The JCHR suggested instead that the term ‘UK’ Bill of Rights would be more accurate and appropriate and would also serve to demonstrate that the rights it contained were ‘owned’ by all of the people (Scottish, English, Welsh and Northern Irish) of the UK (Joint Committee on Human Rights 2008: 30). At the same time they suggested the removal of ‘Responsibilities’ and the addition of ‘Freedoms’ to the title of the Bill to represent the location of the UK Bill of Rights and Freedoms within established Human Rights Conventions, which, following Klug, would signify that the Bill of Rights would provide a unifying force but not at the expense of recognizing ‘the contribution of many countries, and most religions and cultures, to the human rights values recognized throughout the world today’ (Klug 2007a: 13).

In many ways the JCHR report ‘A Bill of Rights for the UK?’ took on the role of filtering out the prioritization of the rights of some over the rights of others, and the discourses of responsibilities, Britishness and citizenship from the Labour Government's proposed British Bill of Rights and Responsibilities. The JCHR has performed the task of removing the contingency, exclusivity, restrictiveness and non-universality of the proposed Bill of Rights in order to propose their own UK Bill of Rights and Freedoms which is universal, inclusive and outward-looking (through referencing existing human rights conventions and standards). Moreover, the JCHR's recommendations could also lead – and there is some evidence that this idea is beginning to gather some momentum – to the uncoupling of the Labour Government's strategies for increasing a sense of obligations, duties and responsibilities through the process of strengthening British citizenship from the processes associated with introducing the Bill of Rights. As noted above, there are a number of similarities between the citizenship and integration strategies found in the Netherlands and those found in the UK. As in recent British proposals for the introduction of ‘earned’ British citizenship (McGhee 2009, 2010), in the Netherlands newly arrived immigrants are required to first gain what Schinkel calls ‘moral citizenship’ in order to apply for ‘formal citizenship’, the latter being ‘the crowning achievement of their becoming-citizens’ (2008: 22). However, perhaps the most significant aspects (for the focus of this chapter) of Schinkel's account of the shifting nature of citizenship processes in the Netherlands (and their parallels with the UK) are what he has to say about the Dutch authorities’ concern with established immigrant communities, in particular Muslim communities, ‘who have formal citizenship status but who lack “integration”’ which is constructed by some politicians and the media in the Netherlands in ‘cultural racist terms’ as being ‘a consequence of their lack of “cultural adjustment”’ (Schinkel 2008: 22). For Schinkel, in the case of established immigrant community groups, many of whom already have formal citizenship status, ‘the real prize’ for the Dutch government was achieving ‘the loyalties involved in moral citizenship’ (2008: 22). The latter has resulted in the Dutch initiating debates on the potential process of developing a Charter of Responsible Citizenship (Schinkel 2008: 24).

There is one other development that we would like to mention that is the relationship between the debates above on the Bill of Rights and the recommendations made by Lord Goldsmith in his wide-ranging citizenship review (2007–8). Lord Goldsmith's review and recommendations also focus on the wider challenges of strengthening a sense of citizenship and commonality for all in the UK. However, in my opinion, Lord Goldsmith's recommendations do not lead to the strengthening of ‘our common bond of citizenship’ through a Bill of Rights. Rather, in my view, many of Goldsmith's recommendations could lead us down the paths to something like a British (or UK) Charter of Responsible Citizenship (similar to the Charter proposed in the Netherlands) which could potentially take the place of the proposed Bill of Rights and Responsibilities.

There are some signs that Jack Straw was beginning (in the last year the Labour Government was in office) to take note of the developments with regards to the creation of the Dutch Charter in the context of the stiff opposition he and the Ministry of Justice have faced from the JCHR and organizations like Liberty. We have described above a seemingly irreconcilable tension between the Labour Government's ambitions for the Bill of Rights with regards to public safety, responsibilities and citizenship (which have been grouped here under the term the ‘politics of citizenship’) and its commitments to universal human rights. Jack Straw has stated that the Dutch Charter of Responsible Citizenship ‘is not intended to be a formal document with direct legal or even normative effect. The aim is to stimulate social change through increasing individuals’ understandings of their responsibilities to one another, and their responsibilities to society as a whole’ (2009: 7). In my opinion there are strong parallels between the Dutch Charter of Responsible Citizenship, Jack Straw's understanding of the latter and Lord Goldsmith's recommendations for developing ‘a narrative, non-legalistic statement of the rights and responsibilities of citizenship’ in Britain (Goldsmith 2008: Executive Summary). Like the Dutch Charter of Responsible Citizenship, Lord Goldsmith advocated a narrative statement of British citizenship that both simplified and clarified ‘the package of rights and responsibilities which demonstrate the tie between a person and a country’ (2008: 6). For Lord Goldsmith, access to citizenship for new immigrants should be rigorous and could, like the earned citizenship proposals, include a ‘credit-based’ modular system for the acquisition of citizenship ‘which may be able to accurately record commitment to settle in the UK and engage with UK society’ (2008: 116). At the same time, Lord Goldsmith was adamant that Britain needs to better emphasize the relationship between those who already enjoy formal citizenship and the State (2008: 92) through the development of his ideas for a statement of citizenship rights and responsibilities. For Lord Goldsmith:

One can imagine a number of circumstances in which such a statement could be of benefit, for example, as part of citizenship education or the coming of age ceremonies which I will discuss below.5 It could moreover make a much clearer statement of what we expect of citizens and what they can expect of their country. (Lord Goldsmith 2008: 92)

There is no way of knowing how these processes would have developed under the Labour Government with regards to the development of a Bill of Rights and/or a Charter of Responsible Citizenship if it had remained in power after the General Election in 2010. It will be very interesting to see how relevant these ‘deficit discourses’ and the shift of emphasis from the Bill of Rights to the Charter of Responsible Citizenship under Labour will be to the ‘investigations’ of the Coalition Government's commission on the creation of the Bill of Rights (which was announced in The Coalition Agreement).