Most Britons are aware, if only from last year’s celebrations, that Bills of Rights, like the industrial revolution, started here. Magna Carta is not the only one; we had another Bill of Rights, called just that, in 1689. That pair, along with their offshoots like Habeas Corpus and jury trial, have encapsulated a heritage of freedom which has spread from this country to many parts of the globe.
So one might have thought that no country would take better to something called a Human Rights Act. Yet that has not happened. Whilst other recent constitutional statutes, such as the Equality Act and Freedom of Information Act are now an accepted part of our political culture, the Human Rights Act sticks out awkwardly as what one Cambridge law academic called “the metropolitan elite’s pet project”.
One does not have to hunt very hard to find clues of why the country which invented bills of rights dislikes the latest version. Here are two professionally taken samples of British opinion.
“How important or unimportant do you think it is that there is a law that protects rights and freedoms in Britain?” (Com Res 2011)
Important – 93%
Unimportant – 7%
Compare that with:
“Do you think the European Court of Human Rights has too much power, not enough or balance right?”
Too much – 70%
About right – 14%
Not enough – 5% (YouGov 2012)
It looks as though the addition of “Europe” transforms attitudes. Here is the assessment of Lord Lester of Herne Hill QC, in many ways the father of the Human Rights Act:-
“The weakness in the Human Rights Act is that it depends upon the Convention to define our rights and freedoms. Instead of asking whether our constitutional rights have been infringed, it asks whether our Convention rights have been infringed. That is not the way it works in the rest of Europe…. Instead of bringing rights home it has an alienating effect…”
He was there explaining why he supports a UK Bill of Rights. What Lord Lester is there talking about is that the Human Rights Act does not even label the rights as British constitutional rights: it simply invites weight to be given to rights in the European Convention on Human Rights, an international treaty.
Many bodies who have studied the case have been attracted by a UK Bill of Rights. Prior to the recent outburst of political football over this subject, in August 2008 the all-party Parliamentary Joint Committee on Human Rights reported,
“There currently exists an unusual cross-party consensus about the need for a British Bill of Rights…”
In 2011 the Coalition Government set up a Commission, whose political complexion, wrote the leading public lawyer Richard Gordon QC, was of “perfect Newtonian balance”. Despite that balance, which might have been thought to make the Commission destined to go off in a series of different directions, it produced a strong 7 out of 9 members support for a UK Bill of Rights.
How, then, would a UK Bill of Rights be different from the Human Rights Act ? In the first place, I envisage a statute declaring common law rights, that is to say rights as understood in our own heritage. There are many such rights, which have been recognised by judges in our courts over the years. Indeed, Dinah Rose QC, a leading public law barrister, in a recent lecture suggested that every one of the rights in the European Convention on Human Rights, had been recognised by the common law as a fundamental right, with the single exception of art 8 on privacy and family life.
Secondly, I should like to see the inclusion of rights which are not mentioned in the European Convention on Human Rights. Of these the most important is jury trial. The great English judge Lord Devlin described jury trial as the lamp which shows that freedom lives. What he meant, I believe, was that so long as conviction of serious crime depends on the verdict of a jury there is a more effective guarantee against the emergence of a totalitarian government than any number of words in declarations.
Thirdly, I should like to see senior courts elsewhere in the common law world placed on the same plane as the Strasbourg Court as what lawyers call “persuasive authority”. Under the Human Rights Act the European Court of Human Rights is given a uniquely privileged role in guiding our domestic courts in interpreting rights. This betrays a lack of appreciation of one of our priceless strengths, namely our links with the jurisprudence of so many parts of the globe who share our legal heritage – the United States, Canada, Australia, South Africa and India to name only some.
Finally, I should like to see a clearer acceptance that in a democratic society policy decisions must rest with a democratic legislature, and not with judges. Section 3 of the Human Rights Act was held by Lord Steyn in the Ghaidan v Godin-Mendoza case in 2003 to empower judges to make unreasonable interpretations of statutes. That goes both against common sense and against our legal culture in which reasonableness – the “reasonable man”, “reasonable doubt” and so on – is the leitmotif. The idea of vesting decisions on crucial social policy with people like themselves can seem tempting for law professors and activist lawyers…but it is contrary to the profoundest political convictions of so many of us.
Anthony Speaight QC is a practising barrister. He was a member of the Government Commission on a UK Bill of Rights. He has been a supervisor of dissertations of King’s College postgraduate students.
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