Gove

The obstacles to a British Bill of Rights

In Thursday’s Queen’s Speech, it was announced that “Proposals will be brought forward for a British Bill of Rights.” Commentators were quick to notice that this was almost exactly the same wording used in the previous year’s Queen's Speech, when it was announced that “My Government will bring forward proposals for a British Bill of Rights.”

Despite the Government’s initial commitment to produce a draft bill within 100 days of the General Election and subsequent commitment to introduce the new bill by summer 2016, no consultation documents or further details have been revealed. There are a number of likely causes of this delay, including the EU referendum, devolution and Parliament.

The EU referendum

The most immediate obstacle slowing the British Bill of Rights is the EU referendum, which was first announced in the PM’s Bloomberg Speech in 2013. It is understood that the Prime Minister believes that allowing the Secretary of State for Justice, Michael Gove MP, to present the argument that Britain should continue, but reform, the United Kingdom’s relationship with the European Court of Human Rights in Strasbourg while Gove simultaneously argues that the UK should withdraw from the European Union is too politically complicated. It is therefore probable that the Government will not publish any further details on the British Bill of Rights before June 23rd, 2016.

Devolution

The second major obstacle is caused by devolution. In October 2014, the Scottish Community Safety and Legal Affairs Minister Roseanna Cunningham stated that:

“The Scottish Government is strongly opposed to any attempt by a future UK Government to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights. To do so would require the consent of the Scottish Parliament and, given our longstanding opposition, we would invite the Scottish Parliament to refuse this.”

On Thursday, this statement was reaffirmed by the Scottish Nationalist Party leader Nicola Sturgeon. Moreover, Ruth Davidson, the leader of the Scottish Conservative Party, has also indicated her belief that the Scottish Parliament would have the final say on any change to human rights.

With almost all major parties opposed to human rights change in Scotland, it is almost inconceivable that Holyrood would give consent to any repeal of the Human Rights Act. The situation is similar in Wales where Carwyn Jones, the recently re-elected First Minister, has pledged that the Welsh Government will do “everything it can to block repeal of the Human Rights Act”.

The questions of whether the devolved parliaments of the United Kingdom can block the repeal of the Human Rights Act and the creation of a British Bill of Rights is complex. Professor Mark Elliott, a Professor of Public Law at the University of Cambridge, explains that the UK Parliament is legally free to create and repeal whichever laws it desires, both for the UK as a whole and for any of the devolved nations.

While at first glance this may appear to allow Westminster to impose human rights change on Scotland and Wales, in practise the situation is much less clear. The UK Government’s relationship with the devolved nations is governed by the Sewel Convention. The Sewel Convention states, in essence, that the UK Government must obtain the consent of devolved parliaments if it wants the UK Parliament to legislate with respect to devolved matters. The Convention is not legally binding. However, disobeying the Convention would be politically difficult particularly in light of the recent Scottish independence referendum.

Whether the UK Government can repeal the Human Rights Act therefore amounts to a question of whether human rights is a devolved matter. Professor Christine Bell argues that because some aspects of human rights are partially devolved then “any unilateral repeal of the Human Rights Act by Westminster would violate the Sewel Convention”. Professor Mark Elliott takes a slightly different view. He argues that the Sewel Convention does allow the UK Government to repeal the Human Rights Act but that the Convention prevents the UK Government from introducing a British Bill of Rights in the devolved nations. This is because the UK Government has recognised that it will activate the Sewel Convention when it enacts legislation that “a devolved legislature could have enacted”. Whichever of these interpretations is correct, the Government’s plans for human rights reform are likely to be substantially curtailed by devolution. This is why Baroness Kennedy, Chair of the Lords’ Justice Committee, has warned that the proposals could “very well end up as an English Bill of Rights”.

Northern Ireland

Within the hurdle of devolution, Northern Ireland presents a distinct obstacle. First, it suffers from the same problems outlined above. Second, it faces numerous other obstacles due to the Good Friday Agreement. The Good Friday Agreement requires the European Convention on Human Rights to be incorporated into UK law. Professor Christine Bell has argued that any change to the Human Rights Act “could be considered a breach of the Good Friday Agreement”. Other observers believe that the UK could repeal the Human Rights Act but that the UK Government would need to simultaneously introduce new legislation that incorporates the European Convention into British law. At the very least, Northern Ireland is likely to significantly restrict the content of any future British Bill of Rights.

Parliament

The third major obstacle for the British Bill of Rights is Parliament. The Scottish Nationalist Party has indicated that it will oppose any repeal of the Human Rights Act - even if it did not apply to Scotland. Labour, the Liberal Democrats, the Green Party, Plaid Cymru and the Northern Irish Nationalist Parties will all, almost certainly, also oppose repeal. Outside of the Conservative Party, the Government is only likely to find allies within the Democratic Unionist Party and UKIP. This means that the Government will need to avoid a rebellion on its backbenches to pass the Commons. However, there are significant reasons to believe this is unlikely. The Human Rights Act has some significant defenders from across the Conservative Party. Even before the bill reaches Parliament there are likely to be significant divisions within the Cabinet. The Home Secretary has said that Britain should withdraw from the European convention and press reports suggest that other Cabinet members are sympathetic to her position. A relatively small rebellion would probably be sufficient to defeat the Government.

If the British Bill of Rights does make it through the Commons then it will face further obstacles in the House of Lords. The Lord’s abilities to delay legislation is usually restricted by the Salisbury Convention - which states that the Lords will not oppose the second or third reading of any Government legislation promised in its election manifesto. However, Professor Mark Elliott has argued that because of the significant constitutional changes involved in the repeal of the Human Rights Act and the creation of a British Bill of Rights, the Salisbury Convention may not apply. Even if the convention does apply, the Lords are likely to attempt to significantly delay the passage of the British Bill of Rights. The Conservatives do not hold a majority in the Lords and many of its members are former judges, solicitors or barristers who are likely to be sympathetic to the Human Rights Act.

Conclusion

In addition to these obstacles, there is also the question of what the British Bill of Rights should contain. This is contingent on whether the UK remains a signatory of the ECHR which, as aforementioned, is hotly debated in Cabinet. Bright Blue’s Associate Fellow, Rupert Myers, has proposed some recommendations in a blog this week. Bright Blue will be publishing a paper with further options soon.

Considering the many obstacles facing the creation of a British Bill of Rights it is perhaps unsurprising that the Government have failed to meet their deadlines. The Ministry of Justice is still committed to repealing and replacing the Human Rights Act. However, negotiating the significant constitutional and political obstacles is likely to be an ongoing and time consuming process.






Conservatives should support the Human Rights Act

The Government is promising a consultation on repealing the Human Rights Act (HRA)  and replacing it with a British Bill of Rights. Arguments about this proposal have been raging for the best part of 10 years. The policy stems from David Cameron’s time as Leader of the Opposition – initially a useful soundbite to wrong-foot the Labour Government of the day and then during the Coalition years to outflank the UKIP challenge. 

But the plans were hidden away on page 93 of the 2015 Conservative election manifesto. Originally believed to be a vote-winner, they didn’t feature in the General Election campaign after private Conservative Party polling revealed it wasn’t popular and Lynton Crosby decided to bury it. 

Instead of trying to turn a piece of political trickery into a coherent policy for constitutional reform, there are many reasons – political, principled and pragmatic – that the Prime Minister would do much better to quietly dump this policy. 

From its inception, this project has been about downgrading human rights protection. To date, every policy suggestion from Ministers would see crucial protections and enforcement mechanisms swept away. Yet this agenda badly undermines past Conservative thinking on rights and freedoms, sits at odds with the national interest and public attitudes, and threatens our delicate constitutional settlement. It also faces fierce opposition in both Houses of Parliament and on the Conservative backbenches, and would set a dangerous global precedent with untested repercussions.

Conservative human rights

From the campaigning activism of William Wilberforce and Winston Churchill’s desire to see “the enthronement of human rights”, to the heroic efforts of the Conservative shadow home affairs and justice teams in stopping the worst excesses of Blair and Brown’s authoritarianism, there is a proud tradition of Conservative support for human rights. 

In 2010, the Conservative-led Government made some good early moves. Proposals for ID cards were scrapped, the 28-day pre-charge detention limit reduced, equal marriage was passed and a Modern Slavery Act enacted. At the Foreign Office, William Hague set in train new initiatives around sexual violence in conflict. But Cameron’s misnomer, ‘Labour’s’ Human Rights Act, deliberately misrepresents a mixed political heritage. It ignores the vital role that Conservative politicians and lawyers played in drafting the European Convention on Human Rights (ECHR), creating momentum behind its incorporation into UK law and then in helping to shape the HRA as it passed through Parliament. 

Incorporation of the ECHR had previously been attempted by key Conservative figures. In 1976 the Society of Conservative Lawyers recommended that “the ECHR should be given statutory force as overriding domestic law”. In 1987, Conservative MP Edward Gardner introduced a “Human Rights Bill to incorporate in British law the ECHR”. By the time the HRA reached its concluding stages in 1998, the Conservative front bench expressed the hope “that it will be implemented effectively, to the benefit of the citizenry as a whole”. In 2009 Conservative Jesse Norman found it was “impeccably Conservative” .

A successful modern Bill of Rights

The HRA is a modern Bill of Rights that has worked extraordinarily well in protecting the rights and freedoms of ordinary people in the UK. While the headlines dwell on cases concerning suspected ne’er-do-wells, the real story is the countless people who have held the State to account where it has overreached or failed to protect – most recently, the families of the Hillsborough victims. 

Liberty uses the Act every day to fight injustice. Many cases are resolved with a letter to a public authority concerning their perceived failings under the Act. But where cases do progress, the Act works to end injustice and bring about crucial changes in law and policy that make Britain a fairer and freer place. 

Over the past 15 years, it has benefited thousands of individuals, from victims of rape, slavery and domestic abuse, to journalists, minority ethnic groups, members of our armed forces and those with disabilities and mental health problems.  

Nevertheless, since its inception there has been a steady drumbeat of criticism of the HRA in the tabloid press and unsubstantiated charges are repeatedly made against it, including that there has been ‘rights inflation’, that trivial cases succeed where they shouldn’t, and that the Act undermines parliamentary sovereignty. 

Rights inflation is a myth. Our courts and Strasbourg have stuck doggedly to the 15 rights contained in the Convention and genuinely trivial cases don’t make it past the court-room door.  

The bogus idea that the HRA threatens parliamentary sovereignty is thankfully gradually being demolished. Yet the notion that Strasbourg judgments could be treated as advisory-only still carries favour. In his essay for Bright Blue’s recent publication, Conservatism and human rights, Damian Green MP advocates the motto “ECHR yes, ECtHR not always”. Yet elsewhere Green states that any replacement British Bill of Rights must not put the UK in breach of its Convention obligations. Both ideas cannot hold. It is simply not possible to be part of the Convention system and pass primary legislation that requires Strasbourg’s judgments to be ignored by the Legislature. The Council of Europe confirmed this in a rare response to the Chris Grayling strategy paper in 2014.

Dangerous attack

Of all the proposed reforms, the most dangerous is the switch from a ‘Human’ Rights Act to a ‘British’ Bill of Rights. This change is neither pedantic nor cosmetic. The animating force of the campaign for the British Bill of Rights has been a desire to rip up the universal nature of human rights protection - removing it from certain groups, including non-citizens and members of the armed forces serving overseas. These policies are contained both in Chris Grayling’s 2014 strategy paper and a draft Bill penned by Martin Howe QC and annexed to the Bill of Rights Commission report. 

The Howe Bill separates human beings into three categories and identifies different sets of fundamental rights protections for each. UK citizens are given full rights, EU citizens are entitled to rights provided by core EU treaties and the third category, ‘non-citizens’, will be entitled to only “the rights and freedoms in the Bill of Rights save for those set out in Articles […]”. The rights non-nationals would be denied is left ominously unspecified. 

Far from injecting ‘common sense’ to the human rights framework, this constitutes an ideological attack on it. In 1930s Europe, the problem was not that nobody’s rights were protected, but that rights protection varied wildly depending on status, race, gender, religion and other arbitrary features. The Convention and the HRA were our continent and our country’s response to the atrocities that can be inflicted when rights are divided and apportioned in this way. The heroic wartime generation intended that human rights would be universal, inalienable and indivisible for all of time. 

Human Rights have public support

As the substantive policies put forward by Chris Grayling and others have been examined and rejected, the Government has started justifying its plans on the basis that human rights are unpopular. 

But there is no evidence of this. When the Bill of Rights Commission consulted nationally on replacing the HRA they found that the majority were not in favour of repeal. This really is unsurprising. The Act encapsulates values and principles with deep roots in the national psyche, and exists to hold the power of the State to account for abuse, negligence and mistreatment. 

Everyone can pick an individual judgment they disagree with, but no Bill of Rights anywhere in the world can boast to have produced universally popular judgments. Bills of Rights by their nature must protect those at the margins, including those with odious views and behaviours. 

If Government is genuinely worried about the Act’s ‘bad press’ and supports human rights as it claims, it could use its platform to put the record straight. Government spent £150.7 million on its own PR last year, and recently found £9 million to controversially fund a leaflet putting forward its view on the EU. Yet the British people have never received any Government information on the rights they have under the HRA. 

Division in an already shaky United Kingdom

Worse than being unpopular, repeal of the Act could trigger nothing short of a constitutional crisis. The HRA was woven into all three original devolution statutes and integral to the Belfast/Good Friday Agreement. Human rights matters are devolved, which means that it is likely impossible to alter, let alone repeal, the HRA without the consent of all three devolved legislatures. Yet in the past 18 months, they have all have passed motions opposing repeal, with the Scottish Government making clear it won’t negotiate on this issue. 

Without this consent, the Government’s only feasible option for delivering the weaker model of rights protection it desires would be to repeal the Act in England and create an 'English Bill of Rights'. Surely English MPs and their constituents wouldn’t stand for this – why should someone have lesser human rights protection in Carlisle than in Cardiff? If the ‘One Nation’ Conservatism to which the Prime Minister lays claim means anything, he must rethink this policy.

In Westminster

Many believe that if Britain votes to stay in the EU on 23rd June, 2016, the PM will sacrifice the HRA to satisfy the frustrations of his Eurosceptic colleagues. But on this again he would be wise to reflect. The EU is nothing to do with the Council of Europe and the ECHR. One of the rallying cries of the various Leave campaigns has been suspicion of unaccountable Government and the perceived democratic deficit it creates. The HRA is one of the few instruments that holds government to account and levels the playing field between the State and the individual. 

You don’t need to look far to see that Eurosceptics can and do support the HRA. The famously Eurosceptic conservative commentator, Peter Oborne, co-wrote The Conservative case for the HRA for Liberty in 2009. Fellow Outer Boris Johnson MP has commented that it was “very hard to see how individual MPs would want to give their constituents less protection than they currently enjoy under the HRA”. Trenchant Eurosceptic David Davis MP has written that “the proposed British Bill of Rights would do nothing to improve the liberty or security of British citizens; indeed, it may do much to weaken them”. 

And Conservatives that do oppose the Strasbourg Court would be unwise to support scrapping the HRA. A weakened British Bill of Rights would result in increased supervision of the UK by the Strasbourg Court, likely leading to many more judgments against the UK Government.

It is widely believed that repeal would not  pass a vote in the Commons, let alone in the House of Lords. This was certainly the feedback received by Conservative whips immediately following the 2015 election and the reason Government abruptly stopped briefing that the HRA would be repealed in the first 100 days. 

Britain’s reputation

Beyond our borders, scrapping the Act would send a regressive and dangerous message. Britain played a huge role in the birth and development of the universal human rights movement, which despite some glaring setbacks has over the past 60 years transformed lives across the planet. 

Surely our best answer to the nihilistic murder-fuelled ideology of Daesh and other despotic regimes is to promote these values all the harder. When you step back, isn’t it faintly absurd that the leaders of a country which gave the world Magna Carta, defeated the Nazis and drafted the European Convention on Human Rights may choose to repeal it and inadvertently set in train the dismantling of human rights systems worldwide?

The Government tries to claim that Britain’s actions do not have global consequences. But this is simply not true. Russian citizens have pleaded with the UK Government to change policy. In December of last year, the Russian Duma passed a law to permit its judges to ignore the ECHR. Surely, that our Government is inspiring Putin’s assault on the Rule of Law is enough to stop this policy in its tracks. 

Conclusion

Bills of Rights by their nature are intended to safeguard universal rights in a permanent fashion, outlasting individual administrations. They are meant to represent a set of values that all democrats can unite around and agree upon. As Toby Young has argued, if a Conservative Government re-drafts it, what is to stop future governments doing the same? 

There is no historical precedent in the democratic world for one political party drawing up a Bill of Rights and introducing it, to widespread political opposition, on the ashes of another. 
If Cameron has his mind on his legacy, he would do well to remember that history is kinder to PMs who prioritise the national interest over party politics. Attempting the repeal of a world-leading and staggeringly effective Human Rights Act that is supported across the world would show an arrogant disregard for his forebears and his Office.

Bella Sankey is the Director of Policy at Liberty