Sunday, 10 August 2008

A British Bill of Rights?

MPs are calling for a British Bill of Rights, which would go further than existing human rights law. The cross-party Joint Committee on Human Rights wants to include greater protections for vulnerable groups such as children and the elderly.

Currently, our main protection in law comes from the European Convention on Human Rights (ECHR) - an international treaty - and the UK's own Human Rights Act (HRA), which makes the ECHR into a part of our legal system, and says that UK law has to be compatible with it.

My initial reaction was worry. Are we talking about legislation to supplement the HRA, or to replace it? This might seem like a trivial point - if the new Bill of Rights replaces the HRA, but contains all the same rights and more, what's the problem? But in fact, it's an absolutely crucial detail.

Most countries have a written constitution to protect their citizens' rights, which has sacred status, and which the government of the day can't just amend at will. But in Britain, any Act of Parliament has the same status as any other. A purely British Bill of Rights could easily be messed around or repealed a future government.

The ECHR, on the other hand, is an international treaty. Although it's now become a part of our legal system, the actual text describing our human rights is contained in that treaty, which puts it beyond the day-to-day reach of MPs. Our politicians can't modify, edit or repeal it. In that sense, the ECHR fulfils the same role as the German Grundgesetz or the US Constitution - it creates a red line which politicians can't cross.

If we were to follow David Cameron's policy of scrapping the HRA and completely replacing it with our own British Bill of Rights, we'd throw away an important safeguard against a corrupt or malevolent government in future.

So I was relieved to see the following paragraph in this latest report:

"In our view it is imperative that the HRA not be diluted in any way in the process of adopting a Bill of Rights. Not only must there be no attempt to redefine the rights themselves, for example by attempting to make public safety or security the foundational value which trumps all others, but there must be no question of weakening the existing machinery in the HRA for the protection of Convention rights."

Thank goodness, really. As long as we remain protected by the European Convention, I can't see a problem with a supplementary set of rights. With that caveat, I'm broadly in favour of this report and its findings.

The biggest problem for human rights law, however, is the problem of perception. There's already a mistaken belief that human rights benefit criminals and terrorists more than the law-abiding citizen. It's not helped by the lurid reports in the gutter press every time a prisoner or deportee launches a legal challenge under the HRA. The most important thing the government can do right now is to stick up for their own legislation - to say that the HRA is a fundamentally good thing, and that it protects everyone equally under the law.


Anonymous said...

There should be no British Bill of Rights (we already have one, anyway) and there should be no HRA. For more than anything else, the HRA cements the principle that pan-European courts are above not only the authority of our own, but are above the authority of the Crown-in-Parliament.

Written constitutions, in whatever form they take, are never an effective safeguard of the phoney concept of 'human rights'.

Newmania said...

we'd throw away an important safeguard against a corrupt or malevolent government in future

Are you quite insane? You actually want us to have no control of our own laws in case we get it wrong in the future
This is richly comic stuff I may do something about it myself .

Jonny Wright said...

Newmania - I'm not saying I want us to have no control over our own laws. I'm saying that I want there to be some basic, fundamental principles in our legal system which politicians can't just play with and discard on a day-to-day basis. At the moment, the ECHR fulfils that role - but there's no particular reason why it should be the ECHR that safeguards our basic freedoms - it could equally well be a British written constitution, which is what I personally would favour in the long term. It's not a case of "us" and "them" (ie. Britain and Europe) - it's a case of us making sure that our own political system has a proper separation of the powers, so that no one faction or individual can get their hands on too much power at the same time.

Sam - I'm really not not sure why you're so opposed to either written constitutions or to the concept of human rights. Yep, sometimes they're abused, sometimes judges interpret them very badly - but in general, human rights law protects ordinary people from getting screwed over, and I doubt any sane person could object to the idea of fundamental bans on torture, slavery, detention without trial, and all of the other really key things written into our HR legislation.

Are you opposed to a written constitution on principle, or is it just that you don't think it would work well in practice?

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