Document Type

Article

Disciplines

International Law

Abstract

For three decades the United Kingdom has debated whether or not to adopt a bill of fights.' The United Kingdom does not have a constitution that codifies fundamental rights and entrenches these rights from government encroachment. Instead, precedent, customs, conventions, and Acts of Parliament collectively safeguard basic rights.3 Parliament, by simple majority approval, maintains the power to modify or repeal rights guaranteed by any of these sources. The judiciary cannot protect fundamental fights from executive or legislative encroachment because judges in the United Kingdom do not possess the power of judicial 4 review.

This debate has generated considerable controversy because the proponents of a bill of rights recommend changes that, if enacted, would fundamentally alter the structure of the United Kingdom's governmental institutions. Recently, the debate received additional attention when Lord Woolf, the senior English civil judge, publicly advocated the adoption of a bill of rights.5 The Lord Chief Justice and many senior judges echo Lord Woolf's sentiments.6 The United Kingdom's two major political parties have taken opposing sides in this debate.7 The Conservative party adamantly opposes the adoption of a bill of rights,8 whereas the Labour party favors a limited bill of rights.

Of the numerous proposals offered thus far, two in particular have dominated this debate. Many commentators advocate entrenching a bill of rights into domestic law.' ° Proponents of entrenchment seek to establish in the United Kingdom the institutional and procedural protections that the United States accords in its Bill of Rights. Alternatively, many oppose any modification of the United Kingdom's governmental institutions." In recent years, however, a third proposal has gained considerable support. The Labour party,12 Liberty 3 and others argue that the United Kingdom should partially entrench a bill of rights. The proposal for partial entrenchment is modeled after the 1982 Canadian Charter of Rights and Fundamental Freedoms. 4 As its name suggests, this proposal adopts a middle ground between entrenchment and the status quo.

The Labour party's victory in the 1997 election has, for the first time, provided the United Kingdom with a realistic opportunity to adopt a bill of rights. Labour has pledged to adopt a limited bill of rights'5 and constitutional reform promises to be one of the items on the new government's agenda.' 6 As the Labour government contemplates how best to protect fundamental rights, this Comment will address two questions: First, should the United Kingdom adopt a bill of rights? Second, if the government should adopt a bill of rights, to what extent should it entrench a bill of rights? In addressing these two questions, this Comment will evaluate and compare the proposals for entrenchment, preservation of the status quo, and partial entrenchment.

Part II provides necessary background information for the discussion. Part HI discusses the main arguments in favor of entrenching a bill of rights. Part IV evaluates the merits of preserving the status quo. Part V examines the proposal for partial entrenchment. Part VI argues that the United Kingdom does not adequately protect fundamental rights, and therefore, some form of entrenchment is necessary. Part VI concludes that several factors militate in favor of adopting a modified version of the proposal for partial entrenchment.

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