Necessary? Practical? Workable? 'The impact of the British Bill of Rights

The government’s plan to repeal the ?Human Rights Act and replace it with a newly created British Bill of Rights, which will apparently meet the somewhat vague aim ?of operating closer to the cultural norms of the UK, has thrown up many more questions than answers. Not least among these questions is ?how exactly one sets about pinning down a cultural norm, let alone subjecting it to judicial interrogation. The sociological aims and implications of the plan pale in comparison ?when considering the hurdles which will have ?to be overcome if the Bill is ever to become law. 

First and foremost, we do not yet know what ?the Bill, still to be unveiled, is going to contain. There have been various hints and asides, a draft Bill produced but not published prior to the 2015 general election, and a Conservative party working paper which allow us to make a well-educated guess as to its content.     

Uncertainty surrounds the survival of the Bill, ?or at least the form it will take when it eventually emerges from both the UK legislative process and any negotiations that need to take place with the rest of the EU. There is no cast-iron guarantee that ?it will automatically make it past the Conservative backbenchers in the House of Commons, where many are concerned about the risk it poses to basic human rights in the UK. Once it has been dealt with by the Commons, the Bill will have to make its way through the detailed and learned examination offered by the House of Lords. 

Devolution agreements

All of this sits over and above a simple fact: the Human Rights Act forms a central part of the devolution agreements in regard to Wales and Scotland, and the Good Friday Agreement in Northern Ireland. 

Even those teachers who ended up holding a fairly low opinion of the then education secretary Michael Gove must feel a twinge of sympathy on realising that he is the man now tasked with formulating a Bill which hopes to achieve what the government is setting out to accomplish, at the same time as squaring a selection of overlapping and interdependent circles. 

It is to be assumed, for example, that the ?powers that be in Scotland will require very ?little persuasion to start thinking about another independence referendum, and that tampering with the basic building blocks of devolution just might be the inspiration they require.         

It is possible, however, through an examination of the working paper alongside the draft Bill produced by Martin Howe QC, ‘Protecting Human Rights in the UK’, to draw up a list of the measures the government is determined to see included. 

If the Bill passes, serious criminals and terrorists will lose the right to remain in the UK under human rights laws, and the right to a family life, enshrined within the current law, will have a much more limited scope, as well as being far more open to interpretation. Any attempt by a defendant to mount a defence based on their human rights ?will be limited by a judgement as to the degree ?to which their actions – both contemporary and historical – have breached the rights of other individuals or the wider community. Furthermore, ?defendants will not be able to use human rights legislation as a defence against breaking other laws. 

No matter how much the aims of the Bill are revised as it makes its way towards the statute books, these are clearly fundamental and far-reaching changes. Opponents of any change ?argue the fact that human rights will be allowed ?as part of a defence only in the ‘most serious cases’, as proposed, is a step that alters the very tenet underpinning such rights. The examples given ?so far encompass cases dealing with property, liberty, and criminal law, but not those that are based on freedom of speech, due process, or the ?use of torture. As soon as a basic right is opened ?up to third-party interpretation – deciding what represents a ‘serious case’ – it ceases to be a basic right. The same is true of plans to vary and graduate rights depending on the citizenship of the individual concerned.  

Cat claim

Proponents of the intended change argue the European Court of Human Rights (ECtHR) has, ?in recent years, begun to operate in areas that ?were never intended when the European Convention on Human Rights (ECHR) was drawn up in the aftermath of the Second World War. Examples used to argue this case include the long-drawn-out legal process required to deport radical cleric Abu Qatada, which was caused by an ECtHR judgment stating that some of the evidence against Qatada might have been obtained via the use of torture, and the judgment which stated the UK blanket ban on prisoners voting was unlawful.

A striking example of the kind of arguments often presented by those who advocate a break with Strasbourg was offered by Home Secretary Theresa May during her speech to ?the Conservative party conference in 2011. 

May argued that article 8 of the ECHR, enshrining the right to a family life, had been ‘perverted’ to the extent that an illegal immigrant had avoided deportation from the UK on the grounds that he owned a cat. The furore which followed this claim centred upon the fact that ?the actual case – which took place in 2008 and involved a Bolivian student – was actually much more complex and involved an appeal (based on the fact that the student had a permanent relationship with his partner), which was successful because the ?Home Office had ignored its own rules on unmarried couples. 

The rights and wrongs of the cat claim, and a political speech that included the deathless ‘I’m not making this up’ line, matter less than the fact that ?a fundamental change to the law in the UK should ?be based on much more than a conception of how the court in Strasbourg has been behaving, and ?the way in which human rights have been applied, ?as opposed to the actual facts. >> 

Damaged reputation

Another factor that needs to be taken into account when considering the possible introduction of ?a British Bill of Rights is that, aside from perhaps not being practical, it may not, according to opponents, truly be necessary. As it stands, ?section 2 of the Human Rights Act requires that UK tribunals and courts ‘take into account’ judgments made in Strasbourg, which is far from being an out-and-out directive. 

While there may be misgivings about some judgments handed down by Strasbourg, these judgments are by no means binding. A more practical approach may lie in persuasion rather than withdrawal, particularly since withdrawal from the ECHR runs the risk of damaging the reputation of the UK internationally.

An indication of this fact is the judgment handed down from the European Court of Justice last month, which states that it is indeed lawful ?for a country such as Britain to impose a voting ?ban on prisoners convicted of serious crimes. ?The judgment stated that such a ban did not represent a breach of the prisoners’ human rights, but was proportionate ‘in so far as it takes into account the nature and gravity of the criminal offence committed and the duration of the penalty.’ 

Whether this will encourage or discourage appeals against the existing blanket ban, it surely offers the kind of nuance and flexibility a British ?Bill of Rights is apparently intended to ultimately provide, and begs the question of whether ?Michael Gove could not, after all, find a better ?use for his time.

Bambos Tsiattalou is the founding partner of Stokoe Partnership Solicitors. Tsiattalou has many years’ experience of investigations and prosecutions relating to serious crime including murder, fraud, drug trafficking, and bribery and corruption cases @StokoePartners www.stokoepartnership.com

 

 

 

‘We do have time on our side to ?get the new laws right’ When he was Lord Chancellor, Lord Hailsham was convinced that he could and should sit as the most senior member of the judiciary to decide cases in court, thus causing some tensions for statutory case law decision making. Fortunately, those days have now ?gone with the passage of the Constitutional Reform Act. The judiciary has, rightly, had its constitutional position protected under a strengthening of the doctrine of the separation of the powers.  A conclusion to this story is probably that politicians do not make good judges at all, ?with some honourable exceptions. However, ?do politicians make good laws?  Sometimes, especially with human rights, and we do have some good lawyers as politicians.  But the citizen does need protection from party political excesses. That is why we have such a problem with the Human Rights Act today, as the balances and checks between citizen and state are considered insufficient.  A recent survey of barristers by The Times reported that ‘nearly three in four maintain that the Human Rights Act does not need reform’ – but this is just barristers. Unfortunately, that is not what was found on the doorsteps of Britain during the general election campaign or the Tory victory in May. So the wider issue is about the need for reform.  A suggestion that could unclog matters would be for the government to present a draft Bill of Rights for consideration prior to a first reading ?as a legislative procedure, to allow more time to review modified human rights proposals. We do have time on our side to get the new laws right. As Baroness Helena Kennedy QC said at ?this year’s Bar Conference: ‘We are all human rights lawyers today, with a commitment to humane law’. Phillip Taylor MBE is a barrister practising from Richmond Green Chambers @PhillipTaylor

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