I have long believed that we should have our own Bill of Rights in the UK. Today, a majority report from the Commission on a British Bill of Rights has reported in its favour, as Geoffrey Bindman has set out. The way they have done so has convinced me that this is an ideal whose time has passed, so superficial is their argument in its favour. I have come to this conclusion for three main reasons.
In the first place, I agree with the authors of the minority report, Helena Kennedy and Philippe Sands, that the pressure for a ‘British’ Bill of Rights comes from those who regard it as a Trojan Horse from which Tory MPs and members plus the right wing press can surge forth with yet more passion and misinformation to de-couple human rights protection here from the European Convention on Human Rights and its court in Strasbourg. Of course, the court requires reform. But even before the Human Rights Act (HRA) incorporated the Convention rights into UK law was passed in 1998 we had benefited from it, and since 1998 the citizens of this country have benefited enormously.
Imagine the political and media commotion, worse even than that we have already seen, that would and may still accompany a serious attempt to introduce a UK Bill of Rights in the context of attacks upon Strasbourg, possibly in a void with the HRA abolished.
Kennedy and Sands state that three members of the Commission see a UK Bill of Rights as a preliminary to withdrawal from the Convention and that such sentiments have been expressed in the Commission’s discussions.
Secondly, it is clear that proposal for a UK-wide Bill of Rights, favoured by the ‘London-centric’ majority on the Commission, is not merely premature in a period when Scotland might choose independence, but is wholly inappropriate in a polity divided into two or three separate jurisdictions and political and ethical persuasions. Scotland already has a separate legal system and its own ideas for human rights protections. Northern Ireland is in the throes of considering its own Bill of Rights and both communities there are broadly in favour of basic socio-economic rights being incorporated against the wishes of the loyalist political class. The UK needs three or four Bills of Rights, not one.
Third and finally, the report astonishingly feels confident about the idea without really giving the any thought-through consideration of what a ‘British Bill of Rights’ might contain. It is true that the members do adopt the conventional ‘London-centric’ political class’s view that socio-economic and environmental rights ought to be left to our politicians – setting aside weighty submissions arguing for both – but mostly, as Kennedy and Sands complain, they merely record all the ideas for adding to the current HRA without evaluating them.
Kennedy and Sands deal a body blow to the majority here. They say:
“We find it difficult to imagine how agreement could be reached on the idea of a UK Bill of Rights, even in principle, when views are so polarised as to what such an instrument might contain. In our view, it would be preferable for form to follow substance, and for any move as to whether there should be a new UK Bill of Rights (or other options) to await a time when there is a reasonable degree of consensus as to what such a Bill might contain. In part, this is because any new Bill of Rights would have to attract broad support to achieve its objectives. It is readily apparent from the discussions within the Commission that no such consensus is in sight, assuming it could ever be attained at all.”
It does seem to me that they rely too much on the consultations that the Commission has taken to argue that the HRA has won public acceptance and thus that the majority view that we need a measure which can achieve public ‘ownership’ is invalid. I believe that there is widespread misunderstanding of the nature of human rights which are too easily conflated in the public mind with the selfishness inherent in an often aggressive ‘rights culture’. But I entirely agree with them that when the issue of a Bill of Rights comes to be resolved, it should be by way of a constitutional convention at which some measure of consensus might be possible. It is not clear whether they share my view that such a convention should lead to a new, overall, constitutional settlement to replace the archaic mystification of parliamentary sovereignty. Obviously a new settlement would include a Bill of Rights within it.
The idea of a convention throws into stark relief the polarisation inevitable in the way Cameron and Clegg set up the Commission. To illustrate the extent of the differences on the Commission Kennedy and Sands refer to the paper of Martin Howe QC, another member, published in the report. They say:
“His draft proposes that the rights that any individual might be able to enjoy will depend on which of three categories of human beings he or she falls into: (i) individuals who are citizens of the United Kingdom, who will on his model enjoy all rights, (ii) citizens of other EU Member States who will enjoy only those rights to the extent provided by EU law, and (iii) everyone else, who will only be able to enjoy a limited set of unspecified rights (but presumably would not be tortured). In our view such an approach is deeply retrograde and inconsistent with a fundamental principle, namely that rights should be secured for all persons within the United Kingdom without discrimination.”
Too right. As so many human rights thinkers and writers have said, the whole point of human rights is to oppose hierarchies of privilege by an expression of our common humanity.