Vera\’s comment piece for the Solicitors Journal on the Human Right\’s Commission. Also available to subscribers on the Solicitors Journal website.
Prepare for Battle
The Coalition Government’s ” Independent Commission to investigate the case for a British Bill of Rights” is about politics not law. Backwoods Tories may bay for an end to Foreigners making us give rights to nasty people, but their majority comes from the Liberal party, which has demanded human rights since the days of Jo Grimond. This obliqueness of purpose grows clearer as one recalls that we have a perfectly good British Bill of Rights already.
Many Tories are uninterested in human rights and none of their nominees is an expert. QCs Martin Howe, Anthony Speaight and Jonathan Fisher are eminent men but in construction, business law and intellectual property. One senior Tory described Mr Howe as anti-Europe; Mr Fisher thinks the ECHR is “fundamentally flawed and lop-sided” and from delivering last year’s Bindman’s Lecture with Tony Speaight I understand his message to be that British commonsense could do a lot better. They have each written a Tory paper on rights and a very quick, not intentionally disrespectful, tour suggests that each has written essentially the same paper. The fourth Conservative nominee, Mr Pinto-Duschinsky has more recently again written the intellectual case against the Court but it is really against the HRA. He sees British law or Parliamentary sovereignty made subservient to an expansionist unaccountable Strasbourg run by judges, from micro-states like Andorra or doubtful ones like Albania. At the very least it gives too little regard to the margin of appreciation – the way British society should implement abstract Convention Rights. On the whole he thinks it should be abandoned but that would take us out of the Convention, out of the Council of Europe and probably out of the EU as well.
His sub-text is that the British Judiciary has in turn become too bold and we should pull back from Strasbourg , curb its bad influence and block them from intruding further into Parliamentary territory on economic and social issues. It is probably a unique reason for wanting a Bill of Rights that it should take power away from the courts and give it to Parliament – a.k.a the majority government.
The Lib-Dem nominees- Labour peer Helena Kennedy, Philippe Sands and Anthony Lester are undoubted experts in the rights area – Professor Sands is an international lawyer but one with a well-known and strong human rights bias. And all, so far as I am aware, if they felt the need of another Bill at all, would want it for the opposite reason, to empower the citizen and further protect him from the over-weaning state.
So these eminent people are not going to agree. On the face of it the Commission Tories are hand-picked to be right of the mainstream and perhaps that shows there is no strong political pressure for change. Perhaps they are there to assuage the remnants of the Nasty Party and to keep public opinion at bay on prisoners votes and sex offender rights. However nothing can be ceded. Implementation would be second term task, and any second term would be likely to lack the leavening influence of the Liberals.
If I were the Tory Commissioners I would have a concerted attempt to drive the liberals backwards or split them to achieve a majority for regressing rights. If I were the liberals I would find it easy to stand intellectually firm but would go for a boost to our meagre array of semi-entrenched rights. After that they’ll all be friends and their huge intellectual power could tackle the 120000 case backlog at Strasbourg and narrow the courts admission criteria. There is a big case for this practical reform. There is a big case too for keeping Strasbourg, the international guarantee for our sometimes unpopular human rights.