All The More Reason

The Conservative Myth of a ‘British’ Bill of Rights.
June 26, 2006, 11:49 am
Filed under: Uncategorized

Conservative Party leader, David Cameron, has said that he wants Britain to have a Bill of Rights. The new document would replace the Human Rights Act 1998 and mark a 'British way of doing things' , with 'a balance between rights on the one hand and also security on the other'. Some reasons why this proposal is not what it seems:

Firstly, the content. Britain, along with 45 other States, is a member of the Council of Europe and, as such, must adhere to the European Convention on Human Rights. This document was drafted in 1950 (by British lawyers, incidentally) and, as well as protecting European human rights, has served as a litmus test for former Soviet bloc countries that wished to enter the motley family of European nations.

Since Britain has no written constitution, and hence no formal protection of human rights, any British citizen wishing, prior to 1998, to pursue their rights under the ECHR had to go to the European Court of Human Rights in Strasbourg.The Human Rights Act 1998 simply corrected this anomaly by incorporating the European Convention on Human Rights into British law. British citizens could now enforce their rights within their own jurisdiction. This was not only more efficient, it also allowed British judges to influence the jurisprudence of the Strasbourg court.

David Cameron is proposing that the Human Rights Act be repealed. Unless he is also proposing that the United Kingdom withdraw from the ECHR and hence the Council of Europe- joining Kazakhstan and Uzbekistan on the sidelines of the European Community and, incidentally, automatically catapulting us out of the European Union- the only result of its repeal would be to return Britain to the inefficient and unsatisfactory pre-1998 situation.

This brings us on to the second objection to Cameron's proposal. The BBC website reports that the Conservatives plans to replace the Human Rights Act with a 'US style Bill of Rights'. This is utter nonsense. A 'US style Bill of Rights' would empower judges to strike down legislation that did not conform with its provisions, requiring a marked increase in the power of the judiciary. Whilst this may not be a bad idea, it is not the idea that the Tories have come up with (nor is it ever likely to be proposed by a Conservative Party wedded to the classical, Diceyan school of parliamentary sovereignty). Their plans would amount to a considerably diluted Bill of Rights 'lite'. The US constituion is entrenched and can only be altered by a reinforced majority of Congress. Dave's document would simply be another piece of law, with the same legal force as (say) the Dangerous Dogs Act 1991, that could be repealed or altered at will by the government of the day. The only proposal for entrenching the document is that the Parliament Act could not be used to force alterations through the House of Lords. This is the only reasonably radical aspect of the Conservatives' proposal; it would afford the second Chamber a more powerful role in respect to 'constitutional' legislation, but it would still fall far short of effecting any profound constitutional change.

Britain should have a Bill of Rights. There is much to be said for the claim that it could help to foster a 'British' identity at a time where British society is more atomised than ever before. Simply tacking it on to a crumbling and anachronistic constituional settlement though will serve absolutely no purpose: a more radical approach is required. The only way to protect human rights effectively is through a codified, properly entrenched constitution. Anything else is a conservative fudge.

Michael P


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