The two dissenters who did not sign up to the majority’s conclusions – Baroness Kennedy of the Shaws QC and Philippe Sands QC – are clear: the time is not ripe for a new UK Bill of Rights. This is because (a) the devolution arrangements in the UK, in which the HRA is successfully embedded, are potentially about to undergo significant change (post-Scottish referendum) (b) the majority of respondents to the Commission’s consultation support the HRA as the UK’s Bill of Rights which incorporates the ECHR rights (but not the European Court case law) into domestic law and (c) for some Commissioners, a Bill of Rights would be a means to decoupling the connection between the United Kingdom and the European Convention on Human Rights (ECHR). In sum, “the case for a UK bill of rights has not been made” and the arguments against such a Bill “remain far more persuasive, at least for now.”
But what, then, of their charge against the remaining seven commissioners who insist that there is a ‘strong argument’ for a new UK Bill of Rights? Kennedy and Sands write, “It is impossible to speak of principle when the true purport is not being addressed explicitly and would include, for some at least, a reduction of rights.”
A clear divide
Indeed, the ‘majority view’ expressed in the report masks a clear divide between those who support an ‘ECHR plus’ UK Bill of Rights and those whose commitment to our obligations under the ECHR appears little more than a cursory nod to the Commission’s terms of reference (which require a UK Bill of Rights to ‘incorporate and build on all our obligations under the ECHR’).
The paper entitled ‘Unfinished Business’ authored by Jonathan Fisher QC and Lord Faulks QC (one of eight individual papers contained within the report) confirms the suspicions of the dissenters. It advocates withdrawal from the Convention unless there is further reform of the European Court of Human Rights (which appears to mean unless there is significantly less ‘interference’ than the eight cases in which the UK was found in breach of the ECHR in 2011) or unless the UK renegotiates its membership of the Convention to exit from the Court (made impossible by Protocol 11). The tenor of the paper makes clear that Fisher and Faulks envisage withdrawal as a real possibility.
In another individual paper, Martin Howe QC offers a draft UK Bill of Rights, containing clauses that are, on the face of it, wholly incompatible with the ECHR. Howe proposes different levels of rights protection for different categories of person (UK citizen, EU and non-EU citizens) – so much for the ‘everyone’ to whom the rights in the ECHR apply. And his clause on the justification for restricting rights involves taking into account the fulfillment of individual responsibilities, including “for providing as permitted by his or her abilities and circumstances for self and family.” Failing to provide for your family is not a recognised ground for restricting universal human rights, notwithstanding the restrictions on certain rights permitted in the interests of factors like national security or the economic well-being of the country.
The third, albeit still only loosely grouped category of Commissioners is arguably the least coherent. This group supports a new UK Bill of Rights that provides the same level of rights protection as under the ECHR. (Note, however, Anthony Speaight QC’s proposal for a return to the pre-HRA position where rights compatibility review of legislation only kicks in when the meaning of a statute is unclear, which would unquestionably produce a weaker bill of rights than the one we have presently in the HRA, at p. 259).
This group signs up to the conclusion that a UK Bill of Rights is necessary to address a lack of ‘public acceptance of the legitimacy of our current human rights structures’, which are viewed as ‘European rather than British’ (note, not UK, para [80]). The case has been made out in principle, in their view, for a Bill of Rights protecting everyone within the jurisdiction of the UK (see Ryan Goss’s excellent challenge to that assertion here). Whether or not the case has been made out, the Commissioners give no indication as to how a document which would produce the same results as the HRA – since it would continue to provide the same level of protection – but which is re-branded as ‘British’ will gain the affection and support of all those who object to the protection of unpopular or marginalised groups under the current regime.
Either unpopular groups will be directly or indirectly excluded from the scope of such a Bill (as modelled by Howe) or opponents of the HRA who object to its universal application will become very disillusioned with a government who promised them something new but has given them more of the same – only now a British judge would be able to rule that a Constitutional rather than a Convention right has been breached. Would that change of obscure term really be enough to satisfy the Daily Mail? For this reason alone, it is difficult to envisage any future leader exposing him or herself to such a risk, least of all the current Prime Minister who has led the call for HRA repeal.
A Bill of Rights that meets the aspirations of the anti-ECHR faction, now freed of the shackles of the Commission’s terms of reference, is therefore much more likely to obtain Mr Cameron’s approval than one that meets the hopes of this third group. The minority Commissioners were right to expose this and warn us what lies behind proposals for a simple ‘rebranding exercise’.
Amy Williams is research assistant on the Human Rights Futures Project at the London School of Economics. She conducted research for the Commission on a Bill of Rights.
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