Thursday, 6 May 2010
[This week's Bad Law blog at TheLawyer.com]
The Conservatives are committed to replacing the Human Rights Act 1998 with a British Bill of Rights.
But what does this actually mean?
In one way this means that they can have it both ways.
If the application of human rights law leads to some perceived unwelcome result, they can just blame the Human Rights Act.
However, if they are accused of being against human rights and civil liberties, they can point to a pledge for a British Bill of Rights.
As an ultimately meaningless but two-faced slogan it matches Willam Hague’s “In Europe but not run by Europe”.
For the proposed Bill of Rights is, as far as one can currently find out, nothing of the sort.
But if you think I am being unfair, let’s look at the evidence.
There are a few statements as to what this Bill of Rights will mean. Michael Howard, a former Home Secretary as well as a QC, wrote that:
“David Cameron proposes to replace the Human Rights Act with a British Bill of Rights; I hope it will restore responsibility for this balancing act to politicians that the public can elect or boot out as they see fit.”
In other words, the function of the Bill of Rights will be to take power from judges to decide cases according to human rights standards. It will thereby be a Bill of Lack of Rights, which one supposes is appropriate for a party whose backbenchers are sadly more familiar with Bills of Fare than bills of rights.
David Cameron in February 2010 gave a speech in a similar vein:
“It’s your life that’s affected by political decisions and the people who make those decisions should answer to you – that’s why we need accountability… And it’s why we will abolish the Human Rights Act and introduce a new Bill of Rights, so that Britain’s laws can no longer be decided by unaccountable judges.”
Thankfully, Tory QC and shadow Justice Secretary Dominic Grieve in March 2010 offered a more considered but vague view:
“This is why I believe that there is merit in looking to the creation of a Bill of Rights and Responsibilities to help better define ECHR prescriptions and ensure that the principles in the ECHR are expressed so as to be seen as being relevant to all people and not as at present an international obligation that seems on occasion to appear to privilege certain individuals over the rights of the law abiding majority.
“Preparing such a Bill would also provide us with an opportunity to engage in a national debate as to what aspects of our legal and constitutional framework constitute core values in the area of civil liberties that could merit better protection than the Human Rights Act itself currently affords.
“For example I believe that the right to trial by jury in indictable cases should be protected as a key feature of our participatory democracy. We may also wish to add to the right to freedom of expression in the ECHR and ensure that principles of equality under the law are spelt out-an important issue in countering the current lobbying for special privileges for different groups.
“There are also sound arguments for including the obligations of individuals to the wider community as well. While some rights are properly absolute, there is no reason under the ECHR, why the failure to act in a neighbourly and acceptable way should not be taken into account if an individual seeks to invoke rights.
“Finally if the document we produce is well worded and is perceived to provide protection to rights and freedoms then it will become effective in defining common.”
This is worth reading carefully, but you will see that there is really nothing there which cannot be done within the framework of the current Human Rights Act.
Mr Grieve also betrays a certain lack of enthusiasm for the gung-ho view of Mr Howard and Mr Cameron.
And he fails to say which convention rights the Bill of Rights will contain and which ones will be left out. He also fails to say how those rights will be enforced.
Legal reality means that the proposed Tory Bill of Rights would have to have one of three qualities, especially as the Tories do not want for the United Kingdom to cease being a signatory to the European Convention of Human Rights.
Either the Bill of Rights goes further than the Human Rights Act in protecting convention rights, or it goes less far, or it has the same effect.
And legal reality demands that either it adopts the same two mechanisms of (first) making it ultra vires for public bodies (including courts) to act against the ECHR and (second) making compliance with the ECHR a general rule of statutory construction, or it does not.
Other than somehow reducing the power of judges to adjudicate cases in accordance with the parties’ convention rights, it is not clear what this Bill of Rights can do which is different from the current Human Rights Act.
For despite the well-meaning attempt by Mr Grieve to give substance to the proposal of the Bill of Rights, it remains a mere campaigning device. Any parliamentary time for the Ministry of Justice in the first session of Parliament would be far better given to libel reform.
And, should they get into government, Conservative ministers should seek instead to properly abide with convention rights and proportionality in law-making, policy-making, and decision-making.
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