Revision Update: US / UK Politics: Exemplar Answer: A Bill of Rights?

Discuss the view that a bill of rights alone does not provide an adequate protection of rights.The continued failure of the UK government to depart the Muslim cleric Abu Qatada would suggest that bills of rights can go a significant way to ensuring that rights are protected. However, the fact that Theresa May, the Home Secretary, has suggested that the UK may opt out or derogate from the ECHR would seem to indicate that rights need more that a written statement that rights exist. The role of the legislature can prove critical in the defence of rights and a much needed part of the protection of rights equation. Without legislative support, a bill of rights will not provide an adequate protection of rights and liberties. The point is that Parliament could, via the mechanism of parliamentary sovereignty, ban any “freedom” they want. Two measures presently going through Parliament clearly illustrate that the ECHR does not provide an adequate protection of rights. The Justice and Security Bill can result in secret trials, the “snooper’s charter” (Communications Data bill) threatens the right to privacy.Developments since 9/11 clearly illustrate the fragility of rights in the USA and suggest that they are not adequately protected. Most recently, the National Defense Authorization Act 2012, paved the way for indefinite detention of US citizens without trial due to alleged association with terrorist groups. There are even first amendment free speech concerns relating to journalists’ ability to criticise the government owing to the vagueness of the act. This concern was the basis for the Supreme Challenge in Hedges v Obama which decided in favour of the government in 2013.

Similarly, the Patriot Act which has recently been renewed also illustrates how a bill of rights cannot provide an adequate protection of rights. The act provides for investigations without showing reasonable suspicion to obtain a warrant. Similarly warrantless wiretaps do not identify the person or the facility to be tapped and the “Lone Wolf” provision of the Intelligence Reform and Terrorism Act 2004 allows secret supervision of non-US persons who are not affiliated with a foreign organisation. Congress also passed the Military Commissions Act 2006 which established military tribunals to determine enemy combatant status without using civilian courts.

The power of executives too can suggest that a bill of rights cannot provide an adequate protection of rights. This is particularly the case in the UK where the executive are able to dominate the legislature due to their inbuilt majority and strict party discipline; resulting in what Lord Hailsham termed “an elective dictatorship”. As mentioned in the introduction, the present government have not been keen supporters of the ECHR. Both Cameron and May have spoken of their desire to create a “British Bill of Rights”. This is not because they feel that the HRA goes too far. Rulings such as the need to give prisoners the right to vote, the prevention of detention of without trial of suspected terrorist suspects in Belmarsh prison and of the use of control orders, the right to family life for failed asylum seekers guilty of manslaughter (Ibrahim Mohammed), have prompted these proposals to dilute the protection of rights and liberties and strengthen the hand of the authorities. Proscribed organisations such as Muslims4UK and Muslims Against Crusades have been banned by the Home Secretary on national security grounds which might be seen to violate the right to free speech and assembly.

In the USA, presidential power can also undermine the effectiveness of a bill of rights as a means of protecting rights. President Bush argued that those held on Guantánamo Bay were not prisoners of war but enemy combatants. If they were classed as the former, they would have been subject to treatment as established under the Geneva Convention (which could be regarded as a bill of rights).Water-boarding and other “enhanced interrogation techniques” were used on Al Qaeda suspects although President Bush issued an executive order banning the use of torture in 2007. There was a question though of whether water-boarding amounted to torture. Vice President Cheney has claimed that the technique had produced several key pieces of intelligence. Consequently, it would seem that fundamental rights and liberties as outlined in the Bill of Rights did not provide any protection to those held on Guantánamo. Habeas corpus rights, the right to a lawyer (6^th amendment), the right to trial by jury (7^th amendment), and no cruel and unusual punishments (8^th amendment) would all seem to have been ignored. The “rule of law” via the Geneva Convention, the Bill of Rights and United Nations Declaration of Human Rights have not provided an adequate of protection of rights.

The Obama administration in contrast illustrates how the executive can complement a bill of rights. President Obama pledged to close the camp during the 2008 presidential campaign and when he elected he signed an executive order for the camp to be closed within a year. President Obama signed the Defense Authorization Bill (see below) but pledged to repeal it. He made a similar commitment with regard to Congress’ refusal to allocate funds in 2011. President Obama has authorised the use of military trials and continued detention without trial in an attempt to speed up the process of dealing with those held. This supports the view that a bill of rights alone will not protect rights; the executive has a vital role to play too.

The concept of “paper rights” would suggest that rights exist on paper (in a bill of rights) but that they are not enforced in practice. This would suggest that the judiciary need to play an active role in the defence of rights and liberties. The role of an independent judiciary in enforcing the “rule of law” allows them to stand up to the arbitrary exercise of power by executives and legislatures which might see the tyranny of the majority override minority and individual rights.

The record of the Supreme Court in this regard might be regarded as inadequate in this regard. The Roberts Court has failed to protect rights as outlined in the Bill of Rights. The composition of the court has a conservative bias. The Bush appointment of Alito was critical in this regard as the departure of Justice O’Connor allowed GW Bush to replace a centrist with a conservative. The above ruling and others such as Florence v Board of Chosen Freeholders 2012 allowing strip searches for any offence contrary to privacy rights established under the fourth amendment; Wal-mart v Dukes 2011 which prevented a case to prove sex discrimination contrary to equal protection 14^th amendment rights; and Baze v Rees which allowed lethal injection contrary to 8^th amendment rights which prevent “cruel and unusual” punishments. The Supreme Court has not ruled on the constitutionality of the Patriot Act. In Russia, the courts upheld the decision to punish the members of “Pussy Riot” which illustrates the need for a judiciary to be independent in order to enforce a bill of rights.

The importance of a bill of rights though should not be under estimated. This is clearly evident in the UK with the Human Rights Act (HRA) of 1998 providing a much greater protection of rights than existed previously. The HRA facilitated the transition from negative to positive rights in the UK. Before the act citizens could do anything that was not banned. The Broadcasting act of 1988 banned free speech when TV and radio companies were prohibited from broadcasting the voices of Sinn Fein members. Today, however the HRA provides a much stranger defence for individual rights and this has been supported by the newly empowered Supreme Court created via the Constitutional Reform Act of 2005. To date whilst the government is clear in its intent to deport Qatada, the fact is, they have abided by the rulings of the courts and respected the “rule of law”.

Individuals and pressure groups now have a much quicker and cheaper way in order to ensure the protection of their rights and liberties because of the ECHR. The ECHR, it could be argued amounts to a “quasi bill of rights” in that its declarations of incompatibility in effect to giving the courts enhanced powers of judicial review. Decisions no longer take 5 years and cost £30,000 as resolution can be found in UK courts without recourse to the Court in Strasbourg. Hence privacy rights have been established as was evident in the Max Mosley ruling.

In the USA the record of the Supreme Court provides a clear illustration of the importance of the Bill of Rights in protecting rights. This is true both of the past and the present. It may be case that liberals regard the Warren Court as the ultimate champion of individual rights with landmark rulings such as Brown v Board, Miranda v Arizona, Gideon v Wainwright and Mapp v Ohio. The Burger with Roe v Wade also ensured a woman’s right to choose was given constitutional protection.

In the last term, it was notable that the Roberts Court was able to provide protection of individual rights in several cases such as Hosanna Tabor v EEOC (religious freedom), US V Jones (need for a warrant for GPS tracking devices under the 4^th amendment) and Maples v Thomas and Lafler v Cooper protected 6^th amendment rights to a lawyer.

It would seem fair to conclude that alone a bill of rights may not be sufficient to ensure that rights are adequately protected. A rights culture in which rights are respected by all political institutions and individuals would seem to be necessary. Pressure groups for example also have a role to play. They provide a level of scrutiny which ensures rights are protected. The ACLU have been to the fore in defending free speech presenting cases and amicus curiae briefs to the Supreme Court in cases such as ACLU v Reno. Other groups such as Human Rights Watch and Amnesty International monitor the situation on GITMO closely. NOW help ensure women’s rights are protected and the NAACP and La Raza protect the rights of minority groups. In the UK groups such as Liberty have campaigned against the “Snooper’s charter” and the Justice and Security bill. As Phillips argued "Eternal vigilance is the price of liberty." This would suggest that a bill of rights needs support from all branches of government and society as a whole.