The British Bill of Rights and the nightmare delay before Christmas

We remain in the dark as to what a post-Human Rights Act world will look like. A published draft of the fabled British Bill of Rights – which  has been over a year in the making – is still yet to materialise. Appearing before the House of Lords constitution committee, Michael Gove confirmed that the government’s consultation into the long-anticipated Bill has once again been delayed. This time until 2016.

'My original intention was to publish the consultation before Christmas,' the Lord Chancellor told peers yesterday. 'It has now been put back. I expect it will be produced in the new year.'

It seems a long time since those heady days, in the aftermath of the general election, when the prime minister, still glowing from his somewhat surprise victory, instructed his new and improved justice secretary to do what the bumbling Chris Grayling could not, and smite down Labour's dreaded human rights legislation within the first 100 days of the new parliament.

Those hundred days came and went, with no sign of the Bill. Destined by the Conservatives to slay the evil 'human rights industry', cloak British troops in its protective embrace, deport would-be troublemakers with no muss nor fuss, and bring order to the chaos that is the justice system, the Bill was nonetheless kicked into the parliamentary long grass. We were told that Gove would publish his plans in the autumn. Then, more specifically, we were asked to wait until 'November or December' for an announcement.

‘Great’, thought many. At least the Ministry of Justice is taking its time to consider the issue instead of rushing to the Commons with some half-baked scheme that would make Belarus's President Lukashenko balk. It also gave those who opposed repeal more time to sharpen their arguments and persuade the public of the importance of the present law.

Turning around public opinion – after years of tabloid hackery – has proved difficult, despite the great work by RightsInfo and the Act for the Act campaign. Fortunately, much of the anti-Human Rights Act rhetoric can be cut through with a dull butter knife. Think 1 Crown Office Row's Adam Wagner when he was able to demonstrate on national television that Peter Bone MP didn't know his posterior from his elbow when it came to debating the issues. 

As expected, there have been leaks as to the Bill’s contents, which suggest it to be seriously flawed. First, The Sunday Times revealed that judges were to be told they could avoid ‘slavishly’ following Strasbourg’s rulings. And, more recently, The Times discovered that the right to family life would be drastically curbed as judges were urged to prioritise public safety over a ‘criminal’s’ right to remain with their families.

However, in a move that will likely be celebrated by government critics, the draft Bill is said to maintain all key provisions of the European Convention on Human Rights instead of a withdrawal from it, as was originally feared. If true, then this news will give further credence to Dominic Grieve MP’s suggestion at the Bar Council’s annual conference earlier this year, that the Tories have found it difficult to reconcile the ideals to the right of the party with the UK’s international obligations.

Nevertheless, we will have to wait a little longer to see whether these leaks are substantiated. The latest delay, it turns out, comes from Downing Street itself, and relates to the possibility of a 'complex' constitutional change to the Supreme Court.

'One of the other challenges, and it’s a challenge that the prime minister has passed directly to me,' said Gove, 'is to think hard about whether or not we should use the British Bill of Rights in order to create a constitutional long stop, similar to the German constitutional court. And, if so, whether or not the Supreme Court should be that body.'

It is because of these 'huge questions' that Gove's consultation document will now be produced in the new year. Or maybe not. One hundred days has already rolled into seven months. Would anyone lay bets against another embarrassing delay?

John van der Luit-Drummond is deputy editor for Solicitors Journal