Opponents of the HRA present the core constitutional issue as preservation of the supremacy of Parliament. This was famously lauded by Dicey as signifying that “it is a fundamental principle with English lawyers that Parliament can do everything but make a woman a man, and a man a woman”. Time, however, has not been kind to example or substance. The Gender Recognition Act 2004 proved that Parliament could make women men but also illustrated that it had to do so to follow a decision of the European Court of Human Rights (“ECtHR”) (see Goodwin v UK (Application 17488/90) (1996) 22 EHRR 123). Under the European Convention on Human Rights (“the Convention”), states are bound “to abide by the final judgment of the [ECtHR] to which they are parties”. Enforcement is delegated, under arts 46(1) and (2), to the Committee of Ministers.

Thus, the legal terrain for argument about domestic implementation of the Convention is limited. There are only two really viable alternatives. Accept the HRA as implementing the Convention in domestic law. Alternatively, pull out of the Convention. The pre-1998 position was incoherent: the ECtHR could apply the Convention but not the domestic courts. All parties accept the Convention. David Cameron, however, has indicated that he wants to keep it but examine amendment or repeal of the HRA. Ideas on how to do this have so far failed to impress. Dominic Raab, a senior researcher with Shadow Justice Secretary Dominic Grieve, speculated in The Assault on Liberty that the UK could simply fail to implement decisions of the ECtHR. This would, however, be squarely at odds with William Hague’s emphasis on human rights at the centre of UK foreign policy. It would attract major support from serial defaulters from the Convention like Russia and Turkey: France and Germany would be less supportive.

Political opposition to the HRA has been stoked by a red top media with a vested material interest in spiking greater rights of privacy. The Daily Mail and the Sun have been happy to peddle complete untruths about its operation. But, these attacks have their effect and both political parties have sought refuge in the concept of a Bill of Rights. This could subsume or replace the HRA or, more cynically, obscure that it was being re-enacted. Labour has produced a consultation paper without any return date – which might suggest that its commitment to the idea is not that serious. At the end of the day, it is pretty clear that Labour will settle for the HRA. Internal opponents like John Reid and Charles Clarke have been sent into exile for other reasons.

David Cameron, however, is still in the game. He argues for “a modern British Bill of Rights … to define the core values which give us our identity as a free nation”. This would “spell out the fundamental duties and responsibilities of people living in this country’”, and protect the rights laid out in the Convention “in clearer and more precise terms”. He has convened a panel to explain in more detail what he means: no doubt, we will soon find out.

A Bill of Rights: the disadvantages

The idea of a Bill of Rights is an interesting and potentially fertile idea. Debate on the equivalent was vibrant in countries like South Africa and Canada, in both of which it culminated in strong constitutional protection for rights. But, for the UK, it has significant disadvantages. For a start, current political conflict guarantees that there will be no cross-party consensus. What is more, no domestic bill can qualify the core provisions of the Convention. It is true that the ECtHR operates a doctrine of “margin of appreciation” allowing some national flexibility but this would not extend to permission to override its own judgments or the basic substance of the Convention. Thus, any British Bill of Rights could not coherently exclude or qualify Convention rights. And a Bill of Rights that covered more than the Convention would raise the question of how additional rights would be enforced and get equivalent protection to those supervised by the ECtHR. Some reference to duties or responsibilities could be included for presentational reasons but legally this would not amount to a hill of beans.

Devolution issues

Finally, there is the enormous problem raised by the notion of a “British” Bill of Rights. The Northern Ireland Human Rights Commission has just given its final advice on the Bill of Rights that was promised in the Good Friday agreement. This reflects a decade of work. The Northern Irish want a distinctive Bill of Rights for themselves. In Scotland, the SNP’s Justice Minister, Kenny MacAskill, of Lockerbie fame, told the Parliamentary Joint Committee on Human Rights: “Are we British? No we are not. We consider ourselves Scottish and we consider those south of the border to be English” (see para 90, Parliamentary Joint Committee on Human Rights A Bill of Rights for the UK?, 2008). He told the Scottish Parliament that the SNP was happy with the HRA, which is built into the devolution settlement, but would go no further. The Welsh will probably take the same line. An attempt to modify the HRA is likely to be opposed in all three devolved jurisdictions where powerful voices will see an interest in arguing that England can do what it wants but they are not interested.

A way forward?

There remains one possibility that might attract a future Cameron government. Dump the rhetoric about extending rights or protecting civil liberties and seek to curb the sections in the HRA through which the Convention is applied in the UK – the power of judicial construction (s 3), declarations of incompatibility (s 4) and statutory duty (s 6). The difficulty is that in government such fiddling would potentially create a nightmare of uncertainty – both in domestic and ECtHR judgments. Human rights law has now bedded down and judicial decisions are relatively predictable. Such an amendment would be made with the express purpose of weakening the domestic application of the Convention. Doctrines of parliamentary supremacy would allow UK legislation to fetter UK judges but would be thwarted just as soon as it took to get an expedited hearing to the ECtHR.

The imminent prospect of government, like hanging in the morning, should concentrate minds towards sense. A debate about civil liberties articulated in terms of a Bill of Rights could be positive. Heaven knows, we need a Parliament more sensitive to their protection. However, attempts to fudge a commitment to the Convention are fraught with political danger that will spill over into constitutional rows. The whole issue looks terribly like the debate on the Hunting Bill that dominated Labour’s first term, full of sound and fury, signifying nothing.

Roger Smith is the Director of JUSTICE


An update from the party political fringes

JUSTICE and the relevant political party lawyers’ associations held fringe meetings at all three major party conferences under the title “A British Bill of Rights: thinking through the issues”, writes Qudsi Rasheed. In addition to Roger Smith, the panels consisted of a barrister from each of those associations, and Michael Wills MP, David Howarth MP and Dominic Grieve QC MP, at the Labour, Liberal Democrats and Conservative Conferences respectively. In keeping with JUSTICE’s role as an all-party law reform organisation, the meetings provided a chance to highlight, think through and discuss some of the major issues around a Bill of Rights. As Dominic Grieve put it, they gave an opportunity to “get away from the rhetoric bit”. And in fact, all three were highly constructive.

A call for consensus

One key common theme between the parties was the vital importance of having cross-party consensus on the issue. It was suggested that one of the hindrances to the HRA 1998 was the fact that it had descended into a party political matter. It was accepted at all three meetings that by drawing upon the language and rhetoric of a Bill of Rights – and all the implications that this carries – the issue should not be used as a political football, but rather, and correctly so, be seen as a matter of fundamental importance going to the heart of the UK’s constitutional framework. Dominic Grieve accepted that there needed to be a high degree of consensus, and Michael Wills stated that this should not be just among the political classes, but among the British people. All panellists at the Labour and Conservative meetings emphasised that rather than immediate action, a process of deliberative democracy and consultation was needed. In addition, David Howarth emphasised that this issue needs “enormous political engagement” and should not be a case of “short-term politics”. All three parties agreed that consensus was vital for any Bill of Rights to be successful.

Another point of convergence was the firm commitment amongst all panellists that there cannot and must not be any regression away from the rights contained in the European Convention; the rights in the Convention were an absolute minimum and the starting point. As Dominic Grieve  pointed out, it would be difficult to find anything in the Convention that a right thinking person could disagree with.

Areas of disagreement

The parties disagreed on what should be done with the HRA. Whilst Michael Wills expressed his – and indeed the present Labour government’s – pride in the HRA, arguing that any meddling with the HRA would be “unprecedented constitutional vandalism”, Dominic Grieve explained that because the HRA had not achieved the public resonance that may have been desired, and because it had failed to adequately protect rights, a Bill of Rights to replace the HRA was needed, which would give greater protection to rights and a greater degree of public ownership. The issue of responsibilities and duties arose in all three meetings, with demonstrably greater appetite for them in the Labour and Conservative fringe meetings, albeit with a healthy dose of suspicion amongst a considerable number. The devolutionary implications and effects of any change to the HRA, and indeed of any “British” or “UK” Bill of Rights were also considered.

All in all, the meetings were highly successful. They showed that there is a real opportunity for co-operation between the parties on this issue of fundamental constitutional significance.

Qudsi Rasheed is a visiting tutor at King’s College London and Legal Officer (Human Rights) at JUSTICE