A New Bill of Rights?

Recently the Commission on a Bill of Rights produced its report, ‘A UK Bill of Rights? The Choice Before Us’. The Commission, established in March 2011, was tasked to consider whether the Human Rights Act 1998 (HRA), the law that incorporates the European Convention on Human Rights (ECHR) into domestic UK law, should be replaced with a new Bill of Rights (BOR) to better reflect British values. This task was set by the coalition government, in response to David Cameron’s intention to replace the HRA with a new BOR and Nick Clegg’s support for the current HRA.

The Commission’s report, published on the 18^th December 2012, concludes that there is a ‘strong argument’ in favour of a new BOR. Well, partially, at least. Seven of the nine members on the Commission are in favour of a new BOR, but two of the members conclude that the case for change has not been made.

The members of the commission in favour of a new BOR rely, principally, on the lack of ‘ownership’ of the HRA by the public as the reason for replacing it with a new BOR. Essentially, the majority say that because the public seem to regard the HRA as, variously, a ‘European’ import, a criminals charter etc., it is desirable to replace it with a more ‘British’ document, reflecting our own values and traditions. Furthermore, the majority members say that a new BOR, while still protecting the rights covered in the ECHR, would be an opportunity to phrase those rights in different language, reflecting British heritage more accurately. Moreover, some of the members said it would be an opportunity to redefine some of the rights and adjust the balances between conflicting rights.

What then does the Commission exactly envisage? It foresees a new BOR which will still incorporate the rights set out in the ECHR, though in different language and with potentially altered definitions. The BOR would largely maintain many of the mechanisms from the HRA, such as the way in which our courts declare other laws to be incompatible with human rights. Finally, it foresees a new BOR as being ‘owned’ by the public because it will better reflect British traditions and heritage.

So has the case been made for replacing the HRA with a BOR? For me at least, the answer is no. And it is no for three reasons:

Firstly, we do not replace legislation simply because it does not feel owned by the public. If legislation is functioning well, there is little justification in replacing it with all the expense that goes with it. Furthermore, if any BOR was going to incorporate the rights in the ECHR (just as the HRA does) what reason is there to believe that it would be ‘owned’ more by the public? It would contain the same rights. More fundamentally, the reasons for which the HRA is not owned by the public are myths. The HRA (and the ECHR which is brought into UK law by the HRA) is a thoroughly British document founded on British traditions and heritage. Although the HRA/ECHR is often attacked as being in some way related to the European Union (about which there is a lot of ill-feeling given the current economic climate), foisted upon us without our consent, the reality could not be further from this. The HRA/ECHR is in no way related to the European Union. The ECHR is a product of the Council of Europe, an entirely separate body, conceived in 1949. The ECHR was signed in 1950 and entered into force in the UK in 1953, twenty years before the UK joined the European Union. The ECHR was drafted in response to the atrocities of the Holocaust and World War II to protect individuals in the future. Winston Churchill called for the protection of human rights and the ECHR was drafted predominately by British individuals. In almost every way the ECHR is a British document, something we should be proud of. I am quite sure that the public would ‘own’ the HRA and ECHR a lot more if only they realised how British it really is. The solution must surely be, therefore, to educate the public about the HRA and ECHR and show the value of them, even if they sometimes protect an unsavoury minority. That is the price to be paid by any human rights document seeking to avoid abuses of power by the state.

Secondly, there must be a very real concern about the way in which the proposed BOR would operate. The Commission has said that a BOR would be an opportunity to redefine the wording of the rights in the ECHR and, in some cases, alter the definitions of the rights and redefine the balances between conflicting rights. The problem with this is that the UK has an obligation (that it agreed to) to comply with the rights in the ECHR as interpreted by the European Court of Human Rights (again, this is not related to the European Union). Accordingly, if a BOR alters the definition and meaning of the rights in a way not compatible with the view of the European Court, it would simply be open to an individual to complain to the Court who would then direct the UK to act in way compatible with their interpretation. The BOR and its interpretation of rights would simply be sidelined. So long as the UK remains a member of the ECHR (there is currently no suggestion that we shall not) we are not in a position to redefine the rights in the ECHR in a way not compatible with an interpretation by the European Court. A BOR cannot change that.

Thirdly, and finally, if the BOR envisaged will still incorporate the ECHR and largely maintain the mechanisms in the HRA, would it really be that different to the HRA? If it is simply a case of updating and modifying a piece of law that is now approaching fifteen years in operation, why not simply amend it? The HRA was masterfully drafted; it can be amended if necessary.

It will be very interesting to see how the Government responds to the Commission’s report. I suspect it will not make a decision one way or the other, but instead decide to consult on the matter further. For my own part, I hope to see things remain the same for the time being. What are your thoughts? 

The Commission's report can be found here: http://www.justice.gov.uk/about/cbr