Human Rights Act v British Bill of Rights

This post draws on the European Parliament’s Sakharov Prize for Freedom of Thought 2011 event which was held in Europe House on 8 December. The Prize – which honours the celebrated figure of legendary Soviet scientist and dissident Andrei Sakharov – was awarded to five Arab human rights activists: Mohamed Bouazizi (Tunisia), Asmaa Mahfouz (Egypt), Ahmed al-Zubair Ahmed al-Sunusi (Libya), Razan Zaitouneh (Syria) and Ali Farzat (Syria); former laureates include champions of human rights such as Nelson Mandela and Aung San Suu Kyi.

The topic for discussion for the event, however, had more to do with human rights at home and a panel consisting of Shami Chakrabarti, Richard Bellamy, Colm O’Cinneide, Robert Buckland, Charles Tannock and Joshua Rozenberg discussed the replacement of the Human Rights Act 1998 (HRA) with a British Bill of Rights (BBR). Joshua expertly oversaw the debate and he also reminded everyone about the arrival of the Al-Khwaja & Tahery v UK judgment (which sets out the relationship between Strasbourg and the UK Supreme Court, see Joshua’s article here) on Thursday, 15 December.

Joshua’s clinical moderation ensured that every moment of the event was advantageously used for discussion. In the first instance each member of the panel was given five minutes to discuss whether they supported a BBR and what, if anything, would they change about the HRA?

It was also explained that everyone talks about human rights in a generalised way and we all want a “HRA+”: but the question remained; what would the real nature of the BBR be? While all the panellists supported “more” human rights (from their respective positions) it was interesting to observe that the debate ultimately became one where the question was whether one was for or against the HRA. Joshua explained to us in advance that arguments connected to greater subsidiarity (to take decisions closer to home) and deference (whether a judge should rule on a matter or leave it to the democratically government) would depend entirely of what the BBR said.

Shami was the first to have her five minutes. Her point of departure was that the HRA already was the BBR. Hence, the HRA did not need adjustment because any politically motivated changes envisaged by the Conservatives would compromise the sacrosanct principles of human rights. She also reminded the audience that today Saturday 10 December was International Human Rights Day. For Shami the HRA was not only British, but it was also European and universal: she explained that rights contained in the ECHR such as freedom from torture, of expression, the rights to a fair trial and to a family and private life were inherent to the rule of law in a democratic society.

Equally, Shami stressed the fact that since lawyers were instrumental to the HRA’s development it was an extremely robust and flexible legal instrument: it was well balanced as it respected Parliament’s sovereignty while offering protection for human rights; it allowed, in fact encouraged, a dialogue to take place between Parliament and judges. The fact that the HRA required domestic courts to take Strasbourg’s decisions into account rather than being bound by such judgments was yet another salient feature (at no extra cost) which further cross-fertilised and enhanced the dialogue between Strasbourg and domestic judges: such activity resonated with democratic ideals, justice and the rule of law.

Very much in her element Liberty’s director unequivocally condemned any move to “scrap” or “dilute” human rights as “nonsense”. For her a retreat from the Council of Europe (CoE) ran the risk of making the Strasbourg Court a court of first instance. Shami explained that despite the facilitation of dialogue within the present system, the core of the problem was the Cameron government’s twofold “beef” with human rights law and the judges who interpreted the law focusing on a Kantian conception of humanity rather than some politician’s shallow notion of nationality.

For Richard Bellamy the HRA achieved its objective by “bringing rights back home” which meant that the belief that the ECHR was a demonic instrument of European hegemony was totally wrong.

Richard shared Shami’s views on the dialogue created by the HRA and he pointed out that the CoE was in fact controlled by the states contracting to the Convention. No force was involved and contracting states did what was expected of them.

For Richard the potential perversity of the BBR was that it sought to specify rights in order to reduce the role of the judicial process (which the government saw as interference); a trade off will be that the reduction in the judicial process would be matched by an increase in crudeness. He also made the point that every Act of Parliament already is a “British Bill of Rights” and Richard was extremely sceptical about changing the present system of human rights law. For him the government’s behaviour was clearly “misconceived and misguided.”

Robert Buckland said that he supported the BBR because the human rights debate was a mainstream political discussion which was currently “live in the minds of the electorate”. His point of departure were the terms of reference of the Commission of the BBR which envisaged building upon existing rights. “It’s all about building on what we’ve got already,” explained Robert and “more work can be done domestically in light of our organic constitution”.

Robert explained that a BBR could enshrine the law of privacy or the Police and Criminal Evidence Act 1984 in order to facilitate greater understanding between local and ministerial law makers and judges.

Colm O’Cinneide began by pointing out that the title “British Bill of Rights” faced two huge problems. Firstly, by being “British” the title excluded Northern Ireland. Moreover, Britain already had a Bill of Rights in 1689.

In relation to the home secretary’s cat speech Colm explained that if one of his undergraduate students made such a mistake then he would, in the first instance, politely request them to read the case again. If, upon a second reading, the student repeated their initial mistake then Colm would very kindly ask them to find something else to do.

For Colm in shaping an expansive BBR analogous to similar legal instruments in Canada, Germany or Finland would make judges stronger and not weaker which was at variance with Prime Minister Cameron’s admission that judges made him “sick to his stomach”.

Colm succinctly argued that the political debate on human rights totally misses the truth about exactly:

  • How much power remained with Parliament?
  • How much power was given to the courts?

The truth was that because Parliament did in fact remain the supreme lawmaker under the present system for the protection of human rights the mechanism worked very well and the HRA was “a very fine instrument”.

Ultimately, the attack on the HRA was politically motivated by opportunism and the government’s assault was aimed at undermining freedom and a free and independent judiciary. (It was rightly explained that the rights under the ECHR are the rights we all cherish and these should not be prejudiced by the political designs of one party.)

Colm pointed out that to rely purely on Hirst No 2 and the right of prisoners to vote to impugn the HRA was a folly without parallel because numerous other examples (see, among others, especially Dudgeon v UK, Smith and Grady v UK) existed where the UK had actually given effect to the rulings of the Strasbourg Court (which was very positive indeed as homosexuals were human beings too).

Charles Tannock made the “power of the judges” his primary concern. For him international legal instruments controlled by powerful judges ignored the public and failed to protect British liberties. Therefore, the BBR provided an opportunity for an objective debate on the subject of human rights while allowing things to be done in “our tradition”.

The fact that – in relation to Article 8 – judges inveterately flouted “in accordance with the law” and as “necessary in a democratic society” meant that judicial activism must be restrained because “criminals benefit” from their rights to a private and family life. Since this was “extremely toxic at the doorsteps with tabloids” Charles would “sacrifice membership of the CoE over the membership of the EU.” (Charles also wanted the UK to be more like the US.)

Having heard some of the things Charles said Joshua jumped up in his seat and asked the first question before opening the floor to the audience.


Joshua Rozenberg: If we leave the CoE could we remain in the EU?

Charles Tannock: The Commission says yes, jurists say it’s impossible and I had a three line answer from the Council which just made no effort to answer this question when I asked them.

Some of the questions which the audience asked are set out below:

Q: Is the ECHR not protecting people from the government?

Shami said that the Convention did protect people and the government’s framing of the debate was dishonest. She questioned whether all the panellists themselves had read the HRA? Everyone said “yes” so Shami conceded that she was in good company but she questioned why successive governments failed to educate the public about rights in the first place. (Shami is right and not many people have read the whole of the HRA!)

Shami explained that permanent constitutional revolution is a dangerous thing – the HRA was purpose built legislation which worked – and she rightly said that dressing up the HRA as the BBR with a Union Jack on it was a waste of time and money. She asked would the people still love it when the BBR (rather than the HRA) stopped criminals from being deported?

In contrast Robert said that the HRA could do with a bit of “nip and tuck” in the law of privacy and in particular section 12 HRA needed to be enhanced. He conceded that he is still compiling a full list of rights which he will conclude at a later point in time.

Colm explained that most people have no idea of the difference between the EU and the CoE. He said this confused public opinion and any “concessions” to the HRA are aimed at getting rid of foreigners. In relation to Charles’ desire to be more American, Colm clarified that US judicial appointments were long and bureaucratic and the net effect of “elected” judges was not all that different because judges were very smart people and it was impossible to nail them to their true colours about their opinions on contentious issues.

Shami added to Colm’s point by making clear that judicial activism is political speak for judgments which politicians don’t like. In the US judges have the power to strike down legislation so scrutiny is desirable but under the HRA judges can’t strike legislation down so why should they be “elected”?

Building upon Shami’s point Richard explained that not only did the HRA prohibit the striking down of legislation, it allowed Parliament to consider the rights implications of legislation and this was a huge political advantage proffered by the HRA.

Q (asked by a Romanian diplomat): Why is the UK taking a step back on human rights?

Charles resorted to the judicial activism point again and stated that the judiciary was stepping on Parliament’s toes.

Colm quite rightly stated that the judges are allowed to exercise control precisely because unlimited executive power must be controlled otherwise there can be no democracy and rule of law. Moreover, even if the HRA was replaced by the BBR, things would not be too different as the judges would not let longstanding precedents be buried for the sake of the government’s political opportunistism.

By undermining an excellent system of rights, argued Colm, we would be throwing the axe at our own feet which would leave us in no position to preach democracy to the mad regimes in countries such as Iran or Uganda.

Richard agreed with Colm and Shami. He added that the HRA was the result of a longstanding debate – spanning four decades – which went beyond party politics because the Convention rights were the ones which mattered not just at home but also abroad: these rights arose from the ashes of World War II and the horrors of the concentration camps and should not be tampered with. (He added that Strasbourg judgments merely benchmarked rights rather than representing European hegemony.) Moreover, the political debate surrounding the HRA – in addition to its legal framework – required fuller attention.

Q (by Gurbakhsh Garcha representing the UN Association, Lewisham): Can it be that human rights are too expensive?

Everyone but Charles (who yet again raised judicial activism) thought that human rights were not too expensive and should be respected.

Shami ended by adding that the larger debate regarding human rights was very badly framed and dominated by the elite: the solution was to involve the public by educating it properly about human rights, by providing literature and disseminating information.

Over a glass of wine Colm told me that the UK Border Agency wanted to have a scan of his passport failing which the Agency would not allow him to act as an external examiner!

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in British Bill of Rights, Human Rights, Human Rights Act and tagged , , , . Bookmark the permalink.

4 Responses to Human Rights Act v British Bill of Rights

  1. PoMoGandhi says:

    Very important issue, very concisely put. Thanks!

  2. mkp says:

    Dr Sinha Sahib Namashkaar, nice to see you around here!

  3. Victoria Lehman says:

    Gratified to see that the Canadian experience and the laws we have developed are so valued. We work very hard to maintain the focus on Human Rights and our Charter of Rights and Freedoms (1980) is our “linch-pin”, though we also have dissenters among Conservative politicians as to the right and interpretation by our highest Court, the Supreme Court of Canada.(referencing the comment above quoting British Prime Minister Cameron’s admission that judges made him “sick to his stomach”). In fact, a recent decision to disband the Canadian Wheat Board (BIll C18) without the required vote of Farmers as the law requires, was overturned by the Supreme Court of Canada, giving Farmers the right to decide on their desire to have a one trading vehicle for wheat or allowing Farmers to trade individually on the open market. The Supreme Court stated that this was an affront to the Rule of Law, and the Government could not ignore the law that governs, and that this challenged the Rule of Law itself. The .Conservative government has stated that it would not be detered. So even in a “rights oriented“ regime like Canada, the struggle for human rights ( which in this case is also percieved as a struggle against large corporate interests), is a constant challenge, and the threats are often insidious and always political, which issue the Courts cannot avoid, and must bring force the focus back to the Law. Of course, a major weakness in the system is that, as Corporations are also defined as legal entities like “persons“, and since Corporations generally have much more financial resources, individuals are at a great disadvantage when attempting to obtain redress through the expensive Court process. And the Conservative government revoked the government funding that formerly assisted individuals in Court challenges.

  4. mkp says:

    Thanks Victoria, Canada needs immigration just like the UK. Too bad human rights are made out to be so bad!

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s