Bill of Rights from a Pantomime Horse?

Bill of Rights from a Pantomime Horse?

By Nicholas Dobson, Thursday, 18 August 2011



Despite the doctrine of collective Cabinet responsibility, coalition governments can sometimes seem a bit like a pantomime horse. One, that is, where the two occupants are pulling hard in different directions.

So attempts to create unity from this diversity can sometimes appear a little strained. And particularly so when one or other side of the horse sticks out a head to yell an unscripted personal message to the audience (e.g. criticism from Business, Innovation and Skills Secretary, Vince Cable, about Prime Ministerial remarks on immigration).

So it’s not surprising that the human rights scepticism of many Conservative Coalition members and their desire to deal with perceived problems with the Human Rights Act by a British Bill of Rights was tempered by Liberal Democrat elements who generally view UK human rights law with a deal more enthusiasm. And these divergent pantomime horse forces are noticeable in the terms of reference of the Discussion Paper issued on 5 August 2011 by the Commission on a Bill of Rights (CBR), entitled: Do we need a UK Bill of Rights?

The notion of a Bill of Rights formed part of the 2010 Conservative Party manifesto: Invitation to Join the Government of Britain. On page 79 the Party pledged to: “protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights”.

However, a liberal dash of water was added to the mix in the May 2010 Coalition agreement which undertook to: “…establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”

No doubt the Liberal Democrat side of the pantomime horse was fed the pledge to “build on” current Convention obligations, to ensure their continuation and to protect and extend British liberties. And presumably it was the larger Conservative part which sought (in a relatively muted whinny) “to promote a better understanding of the true scope of these obligations and liberties”.

This text formed the basis of the first two paragraphs of the CBR terms of reference, the others being:

“To provide advice to the Government on the ongoing Interlaken process to reform the Strasbourg court ahead of and following the UK’s Chairmanship of the Council of Europe.”
“To consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012.”

The CBR are seeking views on the issue of a UK Bill of Rights by 11 November 2011 at: responses@commissiononabillofrights.gsi.gov.uk .

The European Convention on Human Rights

UK human rights are of course a creature of the European Convention on Human Rights which was given domestic expression by the Human Rights Act 1998. The Convention (which the UK was the first state to ratify on 8 March 1951) was formulated against the backdrop of the appalling atrocities of World War II and the human rights abuses then becoming apparent in the Soviet bloc. However, whilst containing unexceptionable universal statements of principle, many of these have become controversial in practice in the light of the evolving jurisprudence of the European Court of Human Rights (ECHR) and decisions of UK courts and tribunals which have adopted a similar approach.

Whilst this has many enthusiasts, there is an equally strong body of opinion that such judicial decisions are strongly and counter-intuitively contrary to UK cultural norms and can sometimes appear to reward those who do the wrong thing. Numerous examples have been highlighted in the press. These include the votes for prisoners case (Hirst v. UK (No 2) [2005] ECHR 681) the contemplation of which David Cameron has said made him “physically ill” and the decision of the ECHR in Sufi and Elmi v. UK (Applications nos. 8319/07 and 11449/07) (where, according to the Daily Telegraph, the Home Office was “….unable to deport more than 200 Somali immigrants, most of them criminals, after judges in Strasbourg decided that sending them home would breach Article 3 of the convention, which bans inhumane treatment”).

Whilst many lawyers are keen champions for the present human rights regime, equally there are critics. Celebrated amongst these is former Law Lord, Lord Hoffman (who has, amongst other things, been Director and Chairperson of Amnesty International Charity Limited). In his 19 March 2009 Judicial Studies Board Annual Lecture, whilst taking no issue with the Convention itself as “a perfectly serviceable abstract statement of the rights which individuals in a civilised society should enjoy” and the text of which is “perfectly acceptable to adopt. . .as a United Kingdom constitutional instrument”, he nevertheless expressed concerns about “the mechanism adopted by the Convention for the application of these abstractions to concrete problems”.

He was of course referring to the ECHR. In his view the local application of these abstract principles “requires trade-offs and compromises, exercises of judgment which can be made only in the context of a given society and its legal system”. And whilst the ECHR gives some recognition to national legal self-determination in the ‘margin of appreciation’ doctrine, the ECHR “has been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States”. In Lord Hoffman’s view, the ECHR “considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe”.

Lord Hoffman also wrote a supportive Foreword to the 7 February 2011 Policy Exchange Paper: Bringing Rights Back Home. Written by Dr. Michael Pinto-Duschinsky (who is also a CBR Commissioner) the Paper “identifies key weaknesses in the current arrangements and recommends a series of political reforms to create a new constitutional settlement – one that guarantees the place of core human rights in national life, while helping to check judicial activism and protect parliamentary democracy”.

The Paper argues that the: ‘time has now come for the UK government to consider whether or not it wishes to remain tied to an inefficient, unaccountable and remote court, or whether our own constitutional reforms have done enough to ensure that the British judiciary is itself capable of considering these questions as the final appellate court”.

It therefore suggests that the UK Government begins negotiations with the Council of Europe (time-limited to two years) regarding substantial reforms to the ECHR. If the negotiations fail, argues the Paper, “then the UK should consider withdrawing from the jurisdiction of the European Court of Human Rights”. For the: “….UK is a mature and long established democracy and, along with the vast majority of other nations, is capable of appointing judges to determine its own human rights law.” And whilst the “…..UK should retain the text of the European Convention of Human Rights in UK law….judges would be free to develop a distinctive UK human rights jurisprudence, as cases are presented that allow them to re-consider the Convention in the context of British political culture as well as the provisions of the proposed British Bill of Rights”.

Not surprisingly, ECHR President, Jean-Paul Costa, does not support a British Bill of Rights. In a June 2010 Guardian interview he was quoted as saying that the “project of returning the court to British rule is a bad idea”. And the introduction of a British Bill of Rights could mean that not all Convention rights are protected. And this “could create divergencies between the [Strasbourg] case law and the law in the UK”.

The application of human rights law is an emotive issue on which many people hold passionately different views. However, the arguments of both Lord Hoffman and Michael Pinto-Duschinsky are cogent and deserve serious consideration. As the latter is represented on the CBR (along with more obvious sympathisers with the current human rights position) the different viewpoints should be well-ventilated and the responses to the Consultation weighed against a range of perspectives.

But whatever the consultation outcome, it is unlikely that, on this issue at least, the Coalition pantomime horse will find itself able to trot contentedly in the one direction.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors.