In March I complained that the Commission on a Bill of Rights should open up. Well, two weeks after publication of the Commission’s final report(s), two of the Liberal Democrat-appointed commissioners have given their insider perspectives of the Commission in an article in the London Review of Books.
Nothing in Helena Kennedy QC and Philippe Sands QC’s article is particularly surprising. The Commissioners emerge as a dysfunctional group of seasoned advocates on two sides of a case, with no presiding judge to rein them in or decide who was right. The report itself, with its bewildering array of separate papers and minority reports, demonstrated how little common ground there was between the commissioners.
I recommend reading the article in full, but here are a few interesting tidbits. Of course, some caution is necessary as the other members of the Commission (particularly the Conservative ones) may remember things differently.
Things began hopefully:
we all knew that our views ranged so far across the political spectrum that the chances of meaningful consensus were not high. Still, we did all try very hard.
But that hope was soon extinguished:
In the search for consensus, we wanted to know what the true objectives of our Conservative friends might be. Eventually, and only after some considerable effort, almost a cross-examination, we drew from three of our colleagues the admission that they wanted the UK to leave the European Convention as soon as possible – which extinguished any possibility of real consensus.
It turns out that most ‘foreigners’ (i.e. UK residents outside of London) like the Human Rights Act:
The subject of foreigners (which we have come to understand as being broadly defined to include anyone living far away from London) reared its head in another unexpected way. It emerged that people in Northern Ireland, Scotland and Wales feel considerably warmer towards the European Court in Strasbourg than they do to the UK’s highest courts in London. Similar feelings were also expressed in Birmingham and other parts of England. Contrary to what we were being told by some of our colleagues as we met in the House of Lords, it seemed that the sense of lack of ‘ownership’ of the Human Rights Act was neither widespread nor deep.
So who doesn’t like the HRA?
The intolerance and lack of support appear to come largely from UKIP and Conservative Party stalwarts in various parts of England where the issue of Europe remains charged.
The first consultation confirmed this, so a second consultation was held to make absolutely sure (I did wonder why…):
Concerned that the results might be misleading, the commission ordered a second consultation. To our amazement, satisfaction or horror (depending on perspective), it produced virtually the same result as the first.
There is no substantive analysis of the consultation responses in the report itself (I had noticed this as well):
Outside of the ‘Overview’, for example, the attentive reader will find no attempt to evaluate – as opposed to record – the arguments that were put to us by those who responded to our consultations or shared their views with us. As noted, there is no effort to set out what a new Bill of Rights might contain. This leads us to the conclusion that the majority includes some for whom a Bill of Rights may be little more than a re-branding exercise intended to foster a greater sense of ‘ownership’, and others for whom a Bill of Rights offers a convenient means to reduce rights, to cast off Europe and return to the delusional idyll of an earlier age of sovereign authority unconstrained by obligations set out in international instruments.
And there is also (bizarrely, for a report which is supposed to be about replacing the Human Rights Act), no analysis of the way in which courts have been applying the European Convention on Human Rights in the 12 years since the HRA began operating:
Striking too is the fact that the main report offers no complaint about the way in which the courts of the United Kingdom have interpreted and applied the Human Rights Act: not one judgment handed down by the courts of the United Kingdom that purports to apply the Human Rights Act or the Convention is identified in the main report for criticism.
The rest of the article reproduces Kennedy and Sands’ minority report, which is well worth reading.
As I said, none of the above is particularly surprising, although it is quite depressing. We already had a sneak peek at the level of internal discord when Michael Pinto-Duschinsky left in March. The Commission cost around £750,000, and we can only speculate what a properly thought-out commission which wasn’t designed to delay, fudge and fail could have achieved.
The almost total silence from the politicians who launched Commission following its report shows how little political will there is (and, arguably, always was) to take any action on the issue. On one view, given how far-out some of the ideas proposed by the minority reports were, inaction may in fact be the safest path for rights protection in the UK.
There are likely to be further recriminations. In the mean time we can only hope that our politicians can, going forward, approach the issue of human rights with intellectual honesty and political courage, two things clearly missing in the design of this Commission. Unlikely, but we can still hope.
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