Today's report on replacing the Human Rights Act with a bill of rights reveals the confused and flawed arguments at the root of the proposition.
The Commission on a Bill of Rights has today produced a report which reflects the confused aims and political manoeuvres which motivated its creation. Though it contains some interesting analysis and could be useful, should a bill of rights be seriously contemplated, that prospect is not advanced by the report, which reaches no clear conclusion. Though a majority of the members say they favour a British Bill of Rights they do not find any serious flaw in the protection of human rights already provided by the Human Rights Act. Their only substantial reason is a cosmetic one: a home-grown product would give the public a sense of “ownership”. They supply no draft of a bill of rights or any attempt to describe its content. All the members accept that it would be premature to pursue the idea in any event until after the Scottish referendum in 2014.
The Commission was launched by the government in March 2011 “to investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties.” It was generally seen as a way of defusing the conflict within the coalition government over the Human Rights Act, which makes the European Convention part of UK domestic law, enforceable through domestic courts. The issue was kicked into the long grass for the time being, but the Commission was told to produce its report by the end of 2012. It has now done so in the nick of time.
Until Labour’s Human Rights Act – introduced with the slogan “bringing rights home” - came into force in 2000, the European Convention could only be implemented by the Court of Human Rights in Strasbourg. Since our own courts acquired jurisdiction they have done their job well. Notwithstanding the hostility of some tabloid newspapers, the Commission’s consultations and enquiries have demonstrated that the Act is widely supported by the public. Mistakenly seeing it as an instrument of European interference in British autonomy, the Tories want to repeal the HRA. The Lib Dems, and Labour, firmly support it.
Of the nine Commission members, eight are lawyers, all Queen’s Counsel, mostly with declared political affiliations - a majority Tory, but with some Lib Dem and Labour representatives. The ninth is the chairman, a career civil servant, Sir Lee Lewis. Only one is a woman - Helena Kennedy. There seemed to be a rough equality between those for and against the HRA, but among those against it, there were divisions. In particular there are believed to be three members who would like to withdraw from the European Convention on Human Rights, which would mean withdrawing from the Council of Europe. The outcome was bound to be a deadlock or a fudge. It has turned out to be both. The majority view is a muddled compromise and two members, Baroness Kennedy and Professor Philippe Sands, have delivered a minority report.
The question of a UK Bill of Rights has been around for a long time. To many it has been a source of pride that unlike other states we have rubbed along for centuries without a written constitution. The most basic statements of principle to be found in our law, such as Magna Carta and the Bill of Rights of 1688, have no more authority than the common law or statute, capable of amendment or repeal by simple majorities at any time chosen by Parliament. In other sovereign states, including the United States, constitutions and bill of rights are characterised by their supreme authority over legislation, limiting the powers of the elected legislature.
That is why the US Supreme Court can strike down legislation which conflicts with the US constitution. The Human Rights Act has all the hallmarks of a bill of rights except that it cannot trump legislation. The courts have the power to declare when legislation is incompatible with the Act but cannot invalidate it. Parliament remains supreme. The Commission agrees that any British Bill of Rights should be subordinate to Parliament in exactly the same way. And a British Bill of Rights would contain all the rights protected by the Human Rights Act.
So why replace the HRA with a bill of rights which covers exactly the same ground? It could protect additional rights but it would be much simpler to add them to the HRA.
This is where the two members of the Commission who wrote the minority report are more persuasive than their colleagues. They do not believe that the case for a British Bill of Rights has been made out. While they do not rule out the possibility that it might be considered in the future, they say the time is not ripe. As all the members agree, the Scottish referendum could affect any decision, as could any changes in the powers distributed among other parts of the United Kingdom. Secondly, they question the significance of the “ownership” issue which influenced the majority.
Their third point is the really important one, which goes to the root of what this whole debate is really about: the power and influence of European institutions on UK sovereignty. The minority members see the proponents of a bill of rights as paving the way for decoupling the UK from the Convention. Hostility to anything that savours of European domination and anger among the Tory right at some of the decisions of the European Court of Human Rights run very deep. And there is indeed a respectable argument that the Court has made rulings which trespass on the freedom of government to carry out its democratically determined function. That is already the subject of discussion and remedial action within the Council of Europe. That is the right forum to consider a concern which is shared by many of the member states.
It is time we ended the mindless carping at the HRA to which we have been subjected for too long by some tabloid newspapers and, to their shame, Tory ministers. The Commission’s report is a damp squib but it will not be a complete waste if it helps to achieve this. Properly understood, the report could promote greater appreciation of the Human Rights Act and the shallowness of the opposition to it.