Is the Bill of Rights right?

It is no secret that the Conservative Party has always been critical of the Human Rights Act 1998 (HRA), which incorporated the European Convention on Human Rights (ECHR) into domestic law. Many of its prominent members have spoken negatively of it and, instead, advocate a British Bill of Rights. In the Party’s 2010 election manifesto, it proposed to “replace the Human Rights Act with a UK Bill of Rights”. Likewise, in its 2015 manifesto the Party made the same promise but added that this proposal “will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK”. Although Michael Gove, the Secretary or Justice, announced before the House of Lords Constitution Committee that the awaited Bill of Rights consultation have been postponed causing a delay in the government’s plan to scrap the HRA again, the question of whether a Bill of Rights is right for the UK remains controversial. With public outcries for the HRA’s repeal demonstrated by the Policy Exchange/YouGov statistic of 75% of Britons thinking the HRA are a “charter for criminals”, there seems to be strong support for this proposal. However, is this figure a product of the media and many politicians’ widespread apathy towards the Strasbourg court’s controversial rulings, especially in foreign suspect cases, or does it show genuine need for Britain to build a home-grown Bill of Rights?

In a House of Commons debate, Dominic Raab, the Minister for Human Rights, shed light on some of the perceived issues of the HRA which a new Bill of Rights will seek to solve, which Mark Elliott identified, including:

• Granting “greater authority for the Supreme Court” so less will be “subordinated” to Strasbourg;
• Stopping rights from being “distorted by judicial legislation”;
• Stopping rights from “being abused by serious and serial criminals”;
• And ensuring “sensible application and proper respect” for the “democratic role” of Parliament.

In answering questions from other MPs, Raab’s responses are vague in analysis. However, it is apparent that the Party’s concerns remain unchanged and seemingly intertwined.

First, there is concern towards the supposed “abuse” of rights by claimants who are seen as undeserving, namely foreign suspects who attempt to prevent deportation using human-rights laws after their prison release. As seen in the reactions to the Strasbourg court’s decision against the deportation of the suspected terrorist Abu Qatada, there is a great will for there to be a Bill of Rights with many antagonising the HRA. However, the idea that a human-rights claimant is ‘underserving’ does not rest well with the conventional notion of human rights. The ECHR was written after the horrors of the Second World War when it was believed that some fundamental rights, such as the right to be protected against inhuman and degrading treatment, should be enshrined with no get-out clause or exceptions. Some rights are fundamental in ensuring fair treatment and protection for all to prevent discrimination against particular groups such as foreign criminals from arbitrary power and populist opinions. Therefore, some human rights should be above the whims of parliament to protect minority interests. Introducing a Bill of Rights imply that, potentially, rights of these individuals will be compromised as the HRA is viewed as firearm for ‘undeserving’ claimants. With the notion that a human-rights claimant can be ‘undeserving’ and thus showing a lack of equal and fair treatment, just because the idea of a Bill of Rights is politically right, it does not mean it is morally right.

Second, the Party is also concerned over a judicial “mission creep”; the court is said to have manipulated the interpretation of a rational set of human-rights laws to the ‘undeserving’ claimant’s advantage. This contention illustrates the tension between the courts and politicians and their institutional role regarding the separation of powers; the crux of the issue is the argument that unelected judges should not apply human-rights law to contentious matters of public interest, such as the balance between the threat of deportation of a suspected terrorist against the potential danger of their stay to the public. The compromise between the public’s interest of being protected and the foreign suspect’s interest in pursuing a family life in the UK is therefore a domestic issue requiring a political value judgement. The judiciary, especially a foreign one, cannot claim democratic mandate to make judgements on cases this heavily involving the public. However, which other institution can we rely on to make such decisions? If anything, contentious cases require neutrality to a larger extent to avoid tyranny of the majority and to reach a fair balance. Politicisation of the decision risks the scale to be tipped heavily in favour of the frantic public who are highly responsive to the media’s exaggerated portrayal.

Lastly, Raab revealed a concern previously expressed by former Justice Secretary Chris Grayling, who advocated for “our Supreme Court to be supreme again”, that there should be an expansion in the UK Supreme Court’s authority in the expense of the Strasbourg court. This suggests that the concern is not with human-rights decisions by judges, but by specifically European judges. However, the argument lacks strength as it is unclear how and if the outcome would be different since all judges are supposedly politically neutral. Additionally, refusal to implement the Strasbourg court’s judgement may impact the obedience of other Council of Europe members. Recently, a bill in Russia was supported allowing Moscow to ignore judgements of international rights courts, foreshadowing the country’s rejection of the ECHR.

So, is the Bill of Rights right? Politically, it is obvious that it will please many voters. However, one cannot help but be sceptical about why the Conservative Party endorse the proposal so badly and what human-rights law will look like if they were to shape it to their liking. This is without even considering the international impact and the obstacles of backbench MPs, the Lords and the devolved assemblies.

Carmen Huang (Law)