At the end of March, the government’s human rights watchdog sent an open letter to Britain’s Joint Committee on Human Rights, expressing worries with the Conservative proposal to repeal the Human Rights Act and replace it with a British Bill of Rights and Responsibilities.
The letter recognises there is a concern about the interpretation of human rights law, and suggests that “any changes to the current framework might offer an opportunity to bring additional rights”. However, the overall tone of the letter suggests disbelief in the proposal and stresses their “regressive” nature, including the potential broader constitutional consequences such proposals would means for Britain. The letter concludes, saying “we must safeguard our reputation for fairness and our moral authority when confronting human rights abuses abroad.”
The Conservative proposals have gained some support.
The media, senior British judges and public opinion favour a British Bill of Rights. A YouGov poll in 2014 asked the question, should Britain withdraw from the European Convention on Human Rights (ECHR)? 41% answered yes (down from 48% the year before) and 38% answered no. But given the vast majority of people do not realise that the ECHR has nothing to do with the EU, hostility to the Convention may in fact be little more than a general suspicion of all things European.
One of the strongest endorsements for a new Bill came from the former Lord Chief Justice, Lord Judge, who argues that the “living instrument” nature of the convention is “undermining democracy.”
We are now in a situation where Britain’s legally enforceable principles come from a foreign, unaccountable court, and not from our own democratically-elected parliament. This is particularly worrying because the consequences of this judicial-political ambiguity is unchartered territory and a disaster waiting to happen if we fail to return human rights law to its original noble purpose.
Why should we be relying on judicial practice and presumptive meaning to become our morally acceptable principles and manifest in our laws, when this is fundamentally the role of Parliament? Whatever happened to democracy? The rule of law is not the same as rule by courts and lawyers. It is the responsibility of the judiciary to restrict their decisions to what the law says, and not to make up new laws, as is the case now in Strasbourg.
Hence it is of vital importance for the future of Britain that we do not look at the European Convention of Human Rights as the end point of human rights, but that instead we challenge it and improve it.
A British Bill of Rights would certainly challenge it, but as to whether it would improve it very much depends on what the Bill contains.
If, as has been suggested, the final proposal revealed by the Conservatives limits the British Bill of Rights to merely an uninspiring replica of original Convention with a similar wording, it would be a real shame and a wasted opportunity to create, once again, a charter of human rights law that every other country would want to follow.
A convincing bill should add some rights, balance the existing ones, and include civic duties. Some suggestions from experts as to what should be added to the Bill include:
The right to a jury trial. This is still a cornerstone of British justice, despite Labour’s best efforts in 2005 to scrap it for some cases. A right many European countries do not have, and one that could be added to the British Bill of Rights.
The limited right to reputation. A better balance needs to be struck between privacy and reputation on the one hand, and freedom of speech on the other. These ideas are in tension with each other and neither is absolutely protected by the law, a new human rights framework could give freedom of speech, under specific circumstances, primacy over privacy.
Ratify the Geneva Conventions as the only law for war-like operations. A recent report by Policy Exchange highlights how “requiring soldiers on the battlefield to operate to the same standard as police officers patrolling the streets of London will make future overseas combat operations impossible”.
Adopt guiding principles on business human rights responsibilities. This notion has already made progress at the UN. As companies become bigger than states, transcending (and occasionally trespassing on) territories and jurisdictions, we must guarantee they respect human rights throughout their operations. The responsibility for the protection of human rights should not only lie on the State’s shoulders, but also on such corporations, which can contribute to a socially sustainable globalisation.
Finally, the biggest challenge to this policy may not come from international politics but from Scotland and Northern Ireland. SNP ministers have said they would resist the withdrawal from the ECHR – the ECHR was written into the Scottish devolution settlement. The last thing this government should do is to give the SNP opportunities to present themselves as a “liberal, open minded group protecting Scotland from an authoritarian and bigoted UK government”.
For its part, the Good Friday agreement, signed at the end of Northern Ireland’s conflict, made the recognition of European human rights law a fundamental part of negotiations. Northern Ireland’s committee on the administration of justice has warned that repealing the Human Rights Act “would shatter confidence within communities over politically sensitive policing reforms”.
There is much at stake here. The Conservative party needs a demonstrably better plan if it wants to successfully sail these rough seas, otherwise the reputation of the UK over human rights will take a pounding.