Bill of rights lessons from the UK

On 18 December the UK Commission on a Bill of Rights issued its report. Australians who advocate for a Bill of Rights should pay close attention to their findings.

Amongst other things, Australia and the UK share a head of state and a legal tradition. Central to that is a belief in the Sovereignty of Parliament: that is a belief that only the democratically elected parliaments should "make" law.

Of course, in interpreting law, courts often get very close to making law but in Australia and the UK such judicial acts are viewed with suspicion. This is particularly true in the area of human rights. Both states have struggled to develop a means of upholding human rights without unduly interfering with popularly elected parliaments.

In 1997 Tony Blair was swept to power in the UK on a tidal wave of good will and a promise of constitutional change. The mood was overwhelmingly positive, vibrant, youthful and the soundtrack to the campaign was D:Ream's "Things Can Only Get Better".

In terms of human rights protection Blair vowed to modernize. He promised to "Bring Rights Home". That seemed like a conscious parody of the English football anthem of 1996, "Three Lions" which had optimistically declared that football was "coming home".

Prior to 1998 UK citizens who felt that their rights had been violated had to exhaust all domestic legal remedies at which point they could appeal to the European Court of Human Rights. Blair proposed incorporating the European Convention on Human Rights (ECHR) in UK Law meaning that citizens could seek to enforce the Convention rights in the UK Courts.

The UK had in fact greatly influenced the drafting of the ECHR in the immediate post World War II era. As a result the idea of "Bringing Rights Home" was to highlight that these rights were "British" in character – this was not something imposed by "Europe" rather it was a natural progression, a way of better securing British citizens rights.

The legislation providing for this was actually rather conservative. The Human Rights Act 1998 (HRA) allows UK courts to interpret law so that it is compatible with the Convention and where that is not possible they can issue a declaration of incompatibility. They cannot strike down or over rule legislation: this is not the US Supreme Court!

The HRA is substantially similar to the Victorian Charter of Human Rights and Responsibilities. It is also similar to the proposals for a dialogue model of Human Rights Act recommended by the National Human Rights Consultation Report (The Brennan Report).

The HRA was lauded by some academics as "genius" because at the moment of greatest controversy – where an Act of parliament was found to be "incompatible" – the issue is returned to parliament to amend the law or to reaffirm their commitment to the rights abusing legislation.

Others derided this mechanism as weak, calling instead for a more robust strike down option.

The Bill of Rights Commission was established after the 2010 UK general election to review the need to supplement or replace the HRA. This was because the HRA failed to gain popular appeal. It may have brought rights home but the act is unloved: castigated as a "villains' charter".

So the Commission has advocated a "rebranding". Any future Bill of Rights should adopt a similar mechanism to the declaration of incompatibility. The rights protected should be virtually the same as the ECHR. None of which is surprising to those familiar with the HRA.

Some see the real problem as being the "E" in ECHR. The British are increasingly euro-skeptic. Perhaps that is all there is to it. But I suspect the real issue is that UK citizens feel they were protected previously. They see judgments they don't agree with; they read misleading press reports; and they conclude that the HRA is bad law.

The reality is that the culture for rights was not properly prepared. Blair saw the HRA as an inevitable progression. The people do not agree.

In 2011 Australia adopted the Human Rights (Parliamentary Scrutiny) Act. As human rights legislation goes it is almost unique. It does not create any judicially enforceable rights. It empowers a Parliamentary Joint Committee on Human Rights (PJCHR) to examine legislation and report on its compatibility with international rights standards. It compels those introducing legislation to formally declare whether it is or is not compatible with those human rights standards.

It is a modest piece of legislation. It is benign almost to the point of being pointless. If this legislation was a color it would beige. And yet… there is some evidence, some signs that it may be creating a rights culture in parliament at least.

The PJCHR is robustly enforcing the declarations of compatibility, demanding explanations and not simply accepting statements for ministers without justification. Civil servants are said to be more aware of their international obligations when drafting legislation.

The Australian legislation is far from perfect. In the end it is powerless – incompatible legislation can be passed, the only sanction is a moment of political discomfort when someone has to say that they know the legislation is incompatible with human rights standards and affectively assert that they don't care.

But unlike the UK – where pollies line up to complain about the human rights system – the Australian legislation might lay real foundations. To create a culture of rights. A sustainable culture of rights. That really would bring rights home.