Many constitutions have bills of rights, often under different names, protecting certain vital civil liberties. The most imitated bills of rights are the 1789 French Declaration of the Rights of Man and of the Citizen, which has survived into the constitution of the Fifth Republic, and the first ten amendments to the US Constitution ratified in 1791, although the English bill of rights, enacted in 1689 to establish Parliament’s sovereignty in relation to the monarchy, is earlier. A typical bill of rights will contain provisions guaranteeing the basic natural rights, such as the freedoms of speech, religion and assembly and the right to own property. It will usually also contain a set of more legalistic civil rights, including, for example, the right to a fair trial, perhaps by jury and with legal representation, prohibitions on cruel and excessive punishment and protection against double jeopardy (being tried twice for the same offence). Many modern bills of rights may also try to guarantee substantive rights such as those to education or employment; these, however, cannot be fully operational, because while a government can, clearly, be stopped from doing something, it cannot be forced to provide a specific good irrespective of the state of the economic or political situation. The constitutions of the new Eastern European democracies, in particular, contain such ‘positive rights’, and their constitutional courts have often enforced them against governments.
Their ability to do this stems from the fact that, whatever else may have been lacking in the communist predecessor states, they all had effective welfare systems.
The effect of a bill of rights depends on other aspects of a country’s legal system. In the USA, with its written constitution and powerful independent Supreme Court, if it is proved to the satisfaction of the courts that the rights of a citizen have been contravened by the implementation of a law, that law is effectively invalidated. Other systems have more of a persuasive or partial effect. So, for example, the Canadian Charter of Rights and Freedoms, incorporated in The Constitution Act, 1982, states that the rights it lists are guaranteed unless legal limits ‘can be demonstrably justified in a free and democratic society’. The English bill of rights has virtually no effect, in part because it has little relevance to modern legislation, but more fundamentally because the doctrine of parliamentary supremacy and the absence of a written constitution means that no previous act can constrain a later one. However, the passage of the Human Rights Act in 1998 has incorporated into English law the European Convention on Human Rights, with dramatic effects on the English judicial approach to citizens’ rights.
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