The UK has introduced its own bill of rights as part of its newfound freedom after leaving the EU. The governing principle of the new bill expresses the UK’s common law approach to human rights. This approach is markedly different from a civil law approach which is much more focused on prescribing what is permissible.
Instead, under the common law approach, everything is allowed unless it is prohibited. In this context, a bill of rights should only relate to those things which are actually rights, as opposed to things that the people think would be “nice to have”. To put this into the language of the moral philosophers who underpin the classical liberal tradition, such as John Locke or indeed Adam Smith, the critical thing is to differentiate between things that are truly rights versus those things which are privileges. The difference between a right and a privilege is that if something is a right, then the government must provide it. If it is a privilege, then there are many ways to provide it – government or private firms through voluntary exchange.
So, for example, it is relatively uncontroversial that the government and only the government must ensure the security of your person and your property. This is why the police function is a government function. Consider something more difficult such as a right to privacy (as set out in the European Convention of Human Rights, for example). Is that a right or a privilege? If it is a right, the government must provide it. What about water, food, or healthcare? If the government were the only provider of these things, negative economic outcomes would result as a private competitive market would never properly develop.
The way in which countries handle this distinction between rights and privileges has a huge impact on the way in which people live their day-to-day lives. It has an impact on the cost of living, and the prices of things like energy, housing and transportation. Everyone has a stake in this and it is not something that should be left for purely academic debate. That is why the introduction of the UK bill of rights is so important. It is the foundation for the way the nation governs itself and will put limits on the scope of government action where such action impinges on the rights of the people. But it does so in a way that is appropriate to a common law country with a limited vision of what those rights should actually be, and a clear demarcation between what are rights and privileges.
If the UK regulates in an overly prescriptive fashion where rights and privileges are confused, this will lead to negative economic effects, compounding the problems of inflation, and the increase in costs of various goods and services. The UK’s approach to rights as encapsulated in the bill of rights will set out the framework in which the UK’s regulatory reforms can proceed. These reforms to our prudential regulation of all kinds will reflect the transition from a civil law, hazard-based system to a common law, risk based one. The latter version has fewer built-in distortions (because it allows the market as opposed to the government find consumer welfare enhancing regulation), and therefore will lead to more economic activity unleashed and more wealth created.
Some concrete examples of this would be the move from a hazard-based to a risk-based system for sanitary and phytosanitary (“SPS”) rules which protect human and animal health in food and agricultural products. The EU’s SPS regime is highly prescriptive and based on hazard (once the hazard is identified, the prescription applies). A risk-based system is much more about actual outcomes. Similarly, financial services’ prudential regulation can either be a highly prescriptive one-size-fits-all system like the Capital Requirements Regulation, or it can be proportionate and be based on actual risk to the system. The bill of rights lays down the choice by limiting the scope of rights to those related to property and security, as well as free speech (the right to your own vocal cords). Where rights are limited – but properly protected where they are limited – then the ordinary market can and should satisfy the needs of people for things they want but are outside of those narrowly defined rights. This is the best way of providing goods and services. Where the government interferes with ordinary market mechanisms, the distortions which ultimately result from this activity leads to higher prices for goods and services or less supply. The UK bill of rights lays the foundation for the UK’s regulatory reform agenda.
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The bill of rights also places a much stronger emphasis on the right to free speech, and in that respect draws closer to the American constitutional protections for free speech. It preserves parliamentary sovereignty and the judicial supremacy of the UK Supreme Court. In this respect it is not so different from other countries’ bills of rights.
There is much discussion in the media of what the bill does or does not say and what function it serves. What does seem to be lost is the fact that it is a vital foundation for the way the UK chooses to regulate its economy. In this respect it plays the same role as the American Constitution and bill of rights which laid the foundations for what has become the world’s most successful experiment in self-governance.
Shanker Singham, CEO, Competere, Former Advisor to the UK Secretary of State for International Trade, and Former Cleared Advisor to USTR and the US Department of Commerce.