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Dominic Grieve QC: ‘It may be time to consider a written constitution’

The government must justify how its proposed Bill of Rights will be different from the ECHR, says former attorney general

4 March 2016

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Parliament should consider whether the time is right to draw up a formal written constitution for the United Kingdom, the Dominic Grieve QC has opined.

Speaking at Brunel University London on controversial plans to scrap the Human Rights Act, the former attorney general said that the government's position had become more nuanced of late, with its proposals not only directed at the Strasbourg court but also against the 'predatory activities of the European Court of Justice in Luxembourg'.

The idea for a new Sovereignty law - currently being fashioned by Oliver Letwin MP - that would assert UK parliamentary sovereignty over EU decisions has been widely ridiculed by legal experts and political commentators.

Grieve said the Sovereignty Bill appeared to be a last ditch attempt to convince the mayor of London, Boris Johnson, and the justice secretary, Michael Gove, to back the prime minister's campaign to keep Britain in the EU.

'When you talk about sovereignty and the EU it is completely meaningless,' he said. 'We enacted legislation in the last parliament that said European law only applies by virtue of parliament allowing it to do so, which was a statement of the blindingly obvious.'

The MP for Beaconsfield, who was the government's chief legal adviser from 2010 to 2014, has been a stark critic of David Cameron's contentious plans to scrap the Human Rights Act and to withdraw from, or minimise the effect of, the European Convention of Human Rights (ECHR).

Grieve recently warned that, in addition to doing damage at home, the government's plans risk destroying human rights across Europe.

However, conscious of the thorny issues of devolution and judicial activism, the silk suggested that it might be time to consider whether a written constitution was needed.

'It's not a panacea but it might provide greater opportunity for greater clarity, certainty, and understanding as to the way power is distributed and used in our country,' said Grieve.

'It might also allow profound constitutional changes to take place as a single process rather than a disjointed one. It could help build trust as to outcomes and intentions, particularly if we have a proper process of public consultation as a constitutional convention. And as part of that process I can see a place for a Bill of Rights.'

Still skeptical of government plans, Grieve said that, in conjunction with a written constitution, the Bill of Rights would allow the opportunity to define and protect rights constitutionally rather than in via the ECHR.

'I do want to emphasise that it would have to be compatible with our convention obligations,' he added. 'It would allow us to protect rights and liberties on which the convention is silent. It could draw up a balance between privacy and freedom of expression.

'It could provide the place to set out key rights for areas of devolved government in keeping with their own national traditions. And if we wanted to avoid a detailed written constitution altogether, then I can see that it could be argued that the Bill of Rights could be a mini-constitution in itself.'

Grieve explained that an advantage to such an entrenchment would be clearer boundaries between the role of the judiciary and that of the UK parliaments.

'Those boundaries are also likely to offer slightly better protection from supra-national courts, be it the European Court of Justice or the Strasbourg court,' he continued.

Grieve's latest talk comes at a time when there continues to exist significant confusion about the consultation on a potential British Bill of Rights.

In an article for SJ, think tank 'Britain in Europe' recently expressed concern over the content of leaked draft plans that suggested that, under the new British Bill of Rights system, judges would no longer have to 'slavishly' follow rulings of the European Court of Human Rights.

Appearing before the House of Lords constitution committee last year, the justice secretary confirmed that the long-anticipated Bill of Rights consultation had once again been delayed, in part due to proposals to turn the Supreme Court into a constitutional long-stop, similar to its German equivalent.

'That's why the government gets in its head that Germany is in some way immune from the European Court of Human Rights and the court in Luxembourg,' said Grieve. 'Actually it's not, as any German lawyer will tell you. The courts in Strasbourg and Luxembourg are likely to tread very warily before saying some part of the constitutional settlement of a country should be interfered with by one of their decisions.'

Warning of the potential ramifications for leaving the ECHR, Grieve said: 'We would be ignoring the reason we signed up to it in the first place: to try and make the world a better and more predictable place. If we abandon it we would be approving anarchy on the international stage.'

Speaking to SJ after the event, the barrister said: 'The government's approach has been to say: "We believe in human rights, but human rights don't have to be delivered through the Human Rights Act." Strictly speaking, that is a fair comment. However, the ECHR is the single most important instrument for promoting human rights on the planet.

'If it is the intention to justify leaving the convention in order to achieve a British Bill of Rights, it is incumbent on the government to justify that decision and explain in detail how it is proposed that the Bill will in practice be different. If it is going to be different, then how and why.

'They have to recognise the truth that if we were to leave the convention it would be very damaging for the promotion of human rights elsewhere.'

Photograph copyright of Sally Trussler of Brunel University London

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