Opinion: a British Bill of Rights should include judicial review of legislation

British people’s attitude to fundamental rights is deteriorating alarmingly. Liberal Democrats in government have a key opportunity to reverse the trend.

When the incoming Labour Government issued ‘Bringing Rights Home’, in the wake of the UK having the worst human rights record in terms of adverse judgments except Turkey, we all applauded.

But the weasel words of the Human Rights act, which explicitly ruled out judicial review of legislation (as happens in Canada under the Charter, and has happeed in the USA since Marbury -v- Madison) has created a climate where the majority of the British people now think that fundamental human rights are a bad thing.

What Jack Straw thought was a clever move, in drafting the Human Rights Act 1998, to avoid political difficulties analogous to those perceived to have been created by the European Communities Act 1972, has merely exacerbated them and turned them into a festering sore.

I’ll say that again:

‘The majority of the British people have come to believe that fundamental human rights are a bad thing’.

How can that possibly be? Britain is always on the side of the angels, isn’t it?

Playing on the innate Euroscepticism of a lot of people, the Murdoch press have (in my view deliberately) conflated the ECJ and the ECtHR. Further more they have deliberately downplayed, it seems, the UK’s pivotal role in the creation of the Council of Europe, and the Convention.

So now we have a Parliament, which has set the face of the UK against the Convention for petty political ends.

The MPs who voted to defy the Strasbourg rulings have, in their naïveté about fundamental rights, given succour to dictators in Member States, such as Russia where the Rule of Law is observed more often in the breach than in the observance. After all, if Britain can ignore the Convention with impunity, so can they (as the thinking will go).

The only thing that can save us now from descending into a pre-WW2 mire (where sovereign states think they can do what they will, so long as it is legalised by their Parliament, and we know where that leads) is to take the political opportunity offered by the readiness of our Coalition partners to push for a ‘British Bill of Rights’ and create a written, entrenched Constitution that is worthy of our history and tradition.

And this is not only not impossible, it’s actually easy.

Our parliamentary draftsmen have done all this before, particularly with the Canada Act 1982 and with all the other former colonies.

So let’s dust it off, and maybe we can catch up with our own history.

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  • Unfortunately, I think you’ll find a British Bill of Rights will be used by the Tory right to solidify into legislation a highly eurosceptic / rights averse (or at least rights decided outside of the UK averse) culture that they know will find popularity in their own core support and the press.

    This in turn will lead to a vote which could split the coalition as I assume that whilst they may have been happy to lend their souls to the devil over tuition fees most Lib dems MP’s would find this a step too far and vote against on principle.

  • @Steve – Which is why so many Tories are furious that Clegg, and his dove-ish Mark Harper, are responsible for this… I think we can wait and see before we judge and then fight as necessary.

  • @Henry
    It’s the ammendments that will do the damage. If the Tories in the commons don’t start it, just wait until the Tebbit crowd in the Lords get hold of it…

  • toryboysnevergrowup 10th Mar '11 - 12:33pm

    If it is a choice between the European Convention on Human Rights supported by the Human Rights Act 1998 and a new Bill of Rights drawn up by the present government (who have already demonstrated how resolute they have been in standing up to Murdoch, who you rightly castigate for his role in this matter) I think I know what I’d support. Please don’t given them stupid ideas it will only ecourage them to do something worse.

  • Weren’t Labour going to edit this HRA as well? I think the passage of amendments will depend utterly on how hawkish or ‘tough on criminals’ Ed Miliband and some of the Labour old guard (I’m thinking Straw, Reid and Blunkett teaming up with David Davis here) feel the need to be…

    @Steve – you’re right to an extent, but the teams matter here. Tebbit can get shot down in a second if Labour and the cross-benchers take the side of Lord Lester.

  • @Henry
    The same Labour Lords who now have such a bad working relationship with the Lib Dems they would probably stay away just to cause them problems. Have a look at recent posts by Chris Rennards and wonder how many Labour Lords will feel in any way obliged to avoid the Lib Dems the embarrasment of a ping pong with the commons. The traditional compromise manner of the Lords was killed off, in my opinion by the behaviour of both sides, and until it is reformed will be a much more politically minded house.

    They will probably come through in the end, but not before real damage may have been done to the coalition.

  • ‘How can that possibly be? Britain is always on the side of the angels, isn’t it?’

    I don’t think that that sort of glib, sneery tone helps though.

    The ECHR and the court are very far from perfect, and an unthinking adherence to them is no substitute for argument. Sure, some of the hang-em-flog-em brigade may well come at this issue with a sentiment I do not share. And yet I do have reservations about a court that has centralised power in a very, very significant way. As the recent Lautsi case (under appeal) shows, the margin of appreciation is shown little more than lip-service. There is no reason why European judges should be making decisions on prisoner voting rights.

    This court was supposed to be a court for nothing but the most serious breached of human rights. It now has a backlog of 140,000 cases (granted, the vast majority involve Russia) and has become almost routinely seen as a court of last resort. Every area of law now needs to take cognisance of what the court thinks, regardless of what parliament does.

    But what’s worse is that the present court turns a tin-ear to the way that human rights were always supposed to be qualified and contested – and hence political not judicial. However ‘fundamental’ the principles behind these ‘human rights’ may be, in practice their meaning is completely fluid. Put another way: whoever has the power to define what a fundamental right is to mean in practice has the power to impose his political views on others. The lack of oversight of the Euro court is stark in contrast with the US Supreme.

    It may well be that the sentiment of some of the anti crowd is not sentiment I wish to be associated with. But that should not however invalidate every criticism of the present ECHR on the basis of some dogmatic attachment to a particular vision of rights.

    I’ll let everyone shout at me now.

  • jedibeeftrix – Well, legitimacy is one issue, but to an extent, every court has that problem. A British Bill of Rights would not resolve this issue. The problem more is that the open-ended nature of the ECHR and the complete lack of any sort of oversight which has resulted in a huge concentration and accretion of power that one would have assumed Lib Dems would instinctively be uncomfortable about. The court now tests all existing legal and political provisions by its own views (some might even say this taking a monoploy on truth) – this is some way removevd from a court that looks only at the most serious of violations.

    In effect, the court’s competence is what it says it is and this has left some real join-the-dots thinking. On prisoner votes, the reasoning was this person is human – voting is something we say is a human right – therefore he must have a vote. The democratic qualifications and arguments were nowhere. If you want to see how far this goes, try Lautsi.

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