Legislating to target problem cases is a much better legal reform plan than the ‘Bill of Rights’

9 Aug

One potential upside of a change of leader is the chance for a change of course on ill-conceived parts of the current Government’s agenda. An obvious candidate for this treatment is the ‘Bill of Rights’.

Back in June, I wrote about the problems with the approach taken in this legislation to trying to deliver some of the reforms to our legal orders for which Conservatives have been aiming for so many years.

Principally, there is a gap between the useful parts of the Bill – a set of quite tightly-focused and technical reforms – and the sweeping approach of its construction and the surrounding rhetoric. It is not really a ‘British Bill of Rights’, but an amended Human Rights Act, with some extra clauses tacked on which are likely to be troublesome in the future.

Writing in yesterday’s Daily Telegraph, Robert Buckland reiterates this case:

“Some of the Bill’s provisions unduly raise expectations, such as those relating to overseas jurisdiction and the worrying issue of lawfare and our experience in Afghanistan and Iraq. The reality is that these provisions will only be effective if there is reform at an international level.”

He also points out, not unfairly, that the House of Lords could well give the Bill a lot of trouble in its passage through Parliament, as their lordships might not feel bound by the Salisbury Convention to defer to manifesto commitments.

A change in leader would be a welcome opportunity to step back and rethink. With limited time and political capital available before the next election, the court reform effort could be much more usefully focused on other parts of the agenda.

First amongst these would be Dominic Raab’s apparent push, reported via documents leaked to the Guardian, that the Government finally intends, amongst other mooted reforms, to start addressing individual problematic cases:

“Finally, it suggests “addressing” named individual cases, including Privacy International, which determined that the secretive investigatory powers tribunal was subject to judicial review, and the Guardian’s successful attempt to get secret letters written by Prince Charles to government ministers published. In the latter case, the supreme court ruled that the attorney general could not block publication just because he disagreed with the upper tribunal’s decision to permit it.”

That paragraph needs a little decoding. The first case mentioned, Privacy International, relates to the ongoing constitutional turf war over so-called ‘ouster clauses’, i.e. a piece of legislation which excludes something from judicial oversight. Parliament has every theoretical right to do this, but the courts have a habit of interpreting these out of existence.

The second case about Prince Charles, more widely known as the ‘black spider letters’ case or more properly Evans, wherein the Supreme Court effectively interpreted out of existence the provision of the Freedom of Information Act which gives the Attorney General the discretionary power to block disclosures.

In the article, this is rather cutely phrased as that he “could not block publication just because he disagreed with the upper tribunal’s decision to permit it”. But what the Guardian neglects to mention is that Parliament had legislated to give him precisely that power. (You can read more on this from Adam Tomkins here.)

If Raab really is looking into this, it is a very welcome development. There are plenty of other cases – the Judicial Power Project lists 50 – which saw problematic rulings and could usefully serve as jumping-off points for legal reform.

Such a granular approach is much more likely to deliver the goods, over the long term, than shouty, sloppy, big-bang reforms made with an eye on the headlines. Here’s hoping the new leader, whoever they are, shifts the focus of constitutional and courts policy in this direction.

The post Legislating to target problem cases is a much better legal reform plan than the ‘Bill of Rights’ appeared first on Conservative Home.

There is a dangerous gap between the rhetoric and reality of the Bill of Rights

23 Jun

Last year, I highlighted three ways in which the ‘big bang’ strategy behind passing a new ‘British Bill of Rights’ could backfire on the Conservatives.

First, there was the risk it simply wouldn’t deliver what the Government’s supporters were hoping for; second, that it might empower the most activist sort of judge to freelance more, not less; third, that the Tories would now own human rights law in the minds of sceptical voters.

Yesterday, Dominic Raab published the version of the Bill that he will be taking forward. It is in somewhat better shape than those December reports suggested. It is still not obviously the best approach for the sort of overhaul he wants to effect.

The politics

In fairness, the Justice Secretary has set himself a very difficult task. How do you overhaul human rights law without withdrawing from the European Convention on Human Rights and fully repatriating our body of law?

Despite the rumblings from parts of the Government after the recent Rwanda ruling, withdrawing from the ECHR is not something which could be quickly or easily done even if there was a consensus around doing it, which there is not.

The Bill of Rights, on the other hand, is something behind which there seems to be a relatively broad Conservative coalition, and it can probably be delivered by the next election.

Moreover, since December the scope of the Bill has been pared back in an important way. At one point there were plans to allow judges to look at rulings from other common law jurisdictions, such as Canada, when making rulings.

This would potentially have given judges more scope for creating a distinctly British scheme of rights, at least inasmuch as it extended beyond the scheme of the ECHR. But it would do that by empowering the more activist sort of judge, and had the danger of being a massive own goal.

Happily, this idea has not made it into the final bill, largely removing one of the three dangers I highlighted in December.

But this means there is now significant tension between the reality of what the Ministry of Justice is attempting, which is largely a set of technical adjustments to the existing human rights regime, and the grand promise implicit in a ‘bill of rights’.

The result is a Bill which is much longer than it needed to be, and many of which’s clauses are underpowered or functionally inoperative – phrases such as “give great weight to” are not nearly specific enough to reliably guide judicial behaviour.

The good in the Bill

In its current form, the Bill of Rights Bill does make some useful changes. For example, Clause 3(3)(a) restricts the courts’ ability to gold-plate Strasbourg rights:

“A court determining a question which has arisen in connection with a Convention right— (a) may not adopt an interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it;”

Then there is the repeal of Section 19 of the Human Rights Act, which governs the need for the Government to produce ‘certificates of compatibility’ affirming their confidence that a Bill conforms to the Convention rights.

The new regime will lower that pre-legislative barrier, making it more likely that Parliament might (as it already has the power to do, e.g. prisoner voting) pass laws which deviate from the will of Strasbourg.

In other areas, it attempts to do something worthwhile, but in a way which might backfire on the Government.

Most obviously, the Bill will prevent the courts from amending legislation they rule to be incompatible with it, as they currently can under the Human Rights Act. Instead, they can merely make a declaration of incompatibility and send it back to Parliament to make a positive decision about what the law ought to be.

This is an important democratic principle and addresses a problematic aspect of the current order, which was originally only meant to apply to old legislation which preceded the HRA but has started to creep beyond that.

However, critics of the Bill worry that this provision might do more harm than good in practice.

The bad of the Bill

Why? Because at present, complainants have to have exhausted avenues for a ‘domestic remedy’ before taking their case to Strasbourg, and the European Court of Human Rights is relatively reluctant to simply overrule a domestic court if they think it has interpreted the Convention rights fairly.

But if British courts can’t actually overturn whatever the problematic law is in a given case, the fear is that they will not actually be deemed capable of offering a ‘domestic remedy’, allowing people to skip them altogether and take their case straight to Strasbourg, which would then rule without a British judgment as a frame of reference.

(Of course, in theory Parliament could simply withstand the resulting declarations of incompatibility, has it has on prisoner voting. But based on past experience, where it has done this precisely once, it is very unlikely this drum beat of adverse judgments would do anything other than drive changes in law.)

Nor is this the only area where the Bill seems to be trying to deliver the benefits of quitting the ECHR without actually doing so. The operations of the Armed Forces overseas is another example.

Whilst it is true that the Convention never originally applied to military operations – the Strasbourg court simply granted itself that extraterritorial power – there is no getting around the fact that it now does apply to them unless the court changes its mind.

So whilst Section 14, governing the Armed Forces, is one of the effectively drafted parts of the legislation, it is likely storing up trouble for the future.

Why this Bill?

The Government could probably have compiled the effective parts of the Bill of Rights into a much shorter bill of amendments to the HRA. This could have delivered most of the practical benefits whilst avoiding many of the pitfalls.

It would also have meant that the broad scheme of human rights law, and any attendant discontents, would have continued to stem from the Human Rights Act, which is widely understood to be a Labour creation, rather than legislation passed by a Conservative government.

Such a series of granular reforms would have been less eye-catching, and might perhaps have been less saleable at the next election. But the risk of making a high-profile move such as this is that if it doesn’t deliver on public expectations, it doesn’t leave the Government anywhere to hide.

The post There is a dangerous gap between the rhetoric and reality of the Bill of Rights first appeared on Conservative Home.

Christopher Bellamy: The Bill of Rights, introduced today, builds on the long tradition of British justice

22 Jun

Lord Bellamy QC is Parliamentary Under-Secretary at the Ministry of Justice.

Today we have introduced a UK-wide Bill of Rights to replace the Human Rights Act.

The Bill will strengthen traditional UK rights such as freedom of speech and recognise the importance of jury trials, rebalance our human rights framework, and restore Parliament’s control of our legislation.

The Human Rights Act was introduced in 1998. It continued the tradition of codifying basic civil liberties that began when King John signed Magna Carta. These rights have been built on through Acts of Parliament ever since.

What this tradition shows is that no Act of Parliament is ever the final word on an issue. So, now is the time to take a fresh look at human rights and create a modern framework that meets the needs of our country today.

This isn’t about rolling back on fundamental freedoms and protections in our country – indeed the UK remains committed to the European Convention on Human Rights (ECHR).

The issue lies not with the Convention itself, but with the way some aspects have developed under the Human Rights Act.

Over time, some provisions in the Act have been interpreted as a duty to follow Strasbourg case law closely – leading to rulings that many people in our country invariably would not recognise as part of human rights. This undermines public confidence in the system and tends to give human rights a bad name.

With the Bill of Rights, we are pressing the reset button and restoring a healthy dose of common sense.

First, we are protecting the right to free speech – the cornerstone of our democracy and arguably the liberty that guards all others.

This, in the Government’s view, risks being whittled away, little by little, for example by the development of a privacy law without legislative scrutiny – licensed by the Human Rights Act – ‘cancel culture’, and over-sensitivity to subjects that should reasonably be up for debate.

Our reforms will make sure courts and public authorities give greater weight to freedom of speech when balanced against other competing rights – so we can protect the healthy, rambunctious debate that has characterised our democracy for so long. This includes further protection for journalistic sources.

And we are also recognising jury trials as an element of the right to a fair trial –– to underpin the fairness in our criminal justice system, which is respected the world over.

Further, we are prioritising our law-abiding public over dangerous foreign criminals.

We will provide a framework to help prevent foreign offenders from exploiting certain ECHR rights to avoid being deported in the public interest.

In the last five years alone, some 70 percent of foreign criminals who successfully overturned their deportation on human rights grounds at the first stage did so by relying on Article 8 of the Convention, the right to family life.

Digging into the details of these cases, we found domestic violence and child abuse among other worrying factors – from which any reasonable person would conclude that family was not the first priority of many of these dangerous criminals.

We will also introduce a ‘permission stage’, so that claimants will need to prove that they’ve genuinely suffered harm and judges can weed out trivial human rights claims before they take up court time and waste taxpayers’ money.

We are also overhauling the system for human rights damages to emphasise that with rights come responsibilities. Courts will have to have to consider a claimant’s conduct when awarding damages where that is relevant to the case – including for those whose actions have harmed others.

Second, we’ll make it clear that the UK Supreme Court, not Strasbourg, has the ultimate authority to interpret the law in this country.

This issue came into sharp focus only last week, when Strasbourg blocked a Government flight for asylum seekers to Rwanda – despite the High Court ruling dismissing the claim, upheld by both the Court of Appeal and the Supreme Court as a decision properly within the power of the High Court judge. These proceedings are ongoing.

Our legal system and judges are among the best in the world, and we should be confident in their decisions. So, we are reasserting the authority of our courts – amending the Human Rights Act to make it clear that UK judges have the last word on British laws.

Third, we are reinforcing the separation of powers, to limit the expansion of human rights into areas which are clearly the job of Parliament. It’s only right that those who make the law can be democratically held to account by the public.

That our constitution has continued to evolve over the years is one of its great strengths – adapting and changing to meet society’s needs. These bold reforms continue that fine tradition.

Human rights are vital to any civilised society. Far from rolling back on individual freedoms and protections, our Bill of Rights will reinforce the fundamental UK liberties we hold dear and boost public confidence in our human rights laws.

Our Bill will strengthen free speech and reinforce the independence of our world-class judiciary. And it will reset a system more in line with the law-abiding majority of the public.

In the Bill of Rights, we are creating a modern domestic human rights framework that will serve the UK public well, both now, and for generations to come.

The post Christopher Bellamy: The Bill of Rights, introduced today, builds on the long tradition of British justice first appeared on Conservative Home.

Richard Ekins: The Government should reject this European Court decision – and press on with those Rwanda migrant flights

16 Jun

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.

The question of judicial power is now firmly back on the national agenda. The decision of the European Court of Human Rights (ECtHR) to intervene to stop the first flight to Rwanda may well be the greatest crisis in our country’s tortuous relationship with the European Convention on Human Rights (ECHR) since the prisoner voting saga.

The Strasbourg Court has said that the UK government may not proceed with its Rwanda plan until the UK courts have fully considered the argument that implementation of the plan breaches the ECHR. This intervention comes despite the UK courts – the High Court, Court of Appeal and finally the Supreme Court – concluding that interim relief should not be granted.

The ECtHR has said that the asylum-seeker in question should not be deported until three weeks after the final domestic judicial decision in his own ongoing judicial review proceedings – which presumably means after the Supreme Court’s decision on appeal from the High Court and Court of Appeal.

If the Supreme Court upholds the Government’s policy, an application will no doubt be made to the ECtHR, which will promptly make further “interim measures” restraining deportation until it hears the full application and decides the merits of the case.

In other words, if the Government complies with the ECtHR’s recent decision, the Rwanda policy cannot be put into action for the foreseeable future, which may mean in effect that it is finished. Whatever one thinks about the merits of the policy, no one should accept that the ECtHR is entitled to intervene in this way – at this stage – to undermine the policy by delay.

The radical nature of the ECtHR’s intervention should not be overlooked. While it may seem this way at times, the ECtHR does not strictly hear appeals from our Supreme Court. It hears applications claiming that the UK, or another member state, has breached someone’s Convention rights. It can only hear applications “after all domestic remedies have been exhausted”.

In this case, domestic remedies have not been exhausted. The asylum-seeker’s judicial review proceedings are ongoing, and he may yet persuade the High Court (or the Supreme Court) that the government is acting unlawfully, breaching his ECHR rights and thus the Human Rights Act 1998 (HRA), in which case the government has promised to seek to ensure he returns to the UK.

In a Policy Exchange paper published yesterday, my colleagues and I make clear that the ECtHR had no jurisdiction to make “interim measures” in this context. The claimant cannot make an application to the ECHR alleging breach of his Convention rights because his domestic legal proceedings are ongoing. The ECtHR’s decision about “interim measures” was made despite the Court not having a substantive application properly before it.

The ECtHR’s decision may have been made by a single duty-judge in Strasbourg. The decision was made ex parte, that is, without the UK having an opportunity to be heard. This is unfair, to put it mildly. It is unjust for the ECtHR to attempt to override a decision made in the course of ongoing domestic legal proceedings without hearing from the UK. It is intolerable for the ECtHR to attempt to disable the UK from acting for an indefinite time period on the say-so of one judge who did not hear argument from the UK.

There is no provision for appeal against this decision or for it soon to be revisited. The Strasbourg Court’s decision violates the principle of subsidiarity in the ECHR, which is the idea that national authorities have the primary responsibility for securing Convention rights and that the role of the ECtHR is to support them in due course.

The Government should not accept that the UK is bound by this decision. Rule 39 of the Rules of Court provides that the ECtHR may “indicate to the parties any interim measure which they considers [sic.] should be adopted in the interests of the parties or of the proper conduct of the proceedings.”

This is not the language of binding court orders. However, as in other cases, the ECtHR has simply made up new law, ruling that if a state fails to comply with interim measures, then it also breaches Article 34 of the ECHR, which provides that the Court may receive individual applications and that states should not hinder exercise of this right.

For the reasons given in our Policy Exchange paper yesterday, the UK would be well within its rights to deny that the ECtHR’s recent decision about “interim measures” imposes a legal obligation on the UK.

The ECtHR’s decision itself has no effect in domestic law. The HRA gives effect to the ECHR in our law but does not incorporate Article 34. Unless UK courts were somehow persuaded, late on Tuesday evening, to issue injunctions in reliance on the ECtHR’s decision – which would have been a bad legal mistake on their part – it would have been perfectly lawful, in domestic law, for the government to have gone ahead with the Rwanda flight on Tuesday night notwithstanding the ECtHR’s intervention.

The Government has a strong argument to make that the UK is not bound by the ECtHR’s decision, either because that Court has simply made up its jurisdiction to provide interim relief or, more specific to this case, because it had no proper application before it. The government should not act as if the ECtHR’s decision is binding.

There is a strong case to repeal, or at least sharply amend, the HRA, as I have argued in a number of Policy Exchange papers. However, repealing the HRA would not address the ECtHR’s latest decision, which, as I say, has no effect in our domestic law.

For the same reason, replacing the HRA with “a modern Bill of Rights”, as the government proposes, would make no difference. In any case, human rights law reform should not aim to empower British rather than European judges. It should aim to restate the primacy of Parliament and to stop human rights litigation from undermining parliamentary democracy and the rule of law.

Amending the HRA and limiting the powers of UK courts is an important part of this process. However, if the UK is to remain a party to the ECHR, as the government proposes, it must be willing, in suitable cases, to resist judgments of the ECtHR which clearly depart from the ECHR and threaten vital national interests.

In the present case, the Government should firmly maintain that the UK has no obligation in international law to comply with the ECtHR’s recent decision, which was made without jurisdiction, and that it is free to implement its policy unless a UK court says otherwise. (If a UK court has relied on the ECtHR’s decision, its judgment  should be promptly appealed.)

The Supreme Court might in the end in such circumstances rule against the government on the merits, which is a reason why the government would have been well-advised to accept Policy Exchange’s recommendation in February that any scheme to address the crisis in the Channel should be very clearly mandated by legislation that applied notwithstanding the HRA. Parliament should take responsibility for what should be done, rather than leaving this to be settled by litigation either in London or in Strasbourg.

The post Richard Ekins: The Government should reject this European Court decision – and press on with those Rwanda migrant flights first appeared on Conservative Home.

Austen Morgan: Will Raab’s new Bill of Rights end the Strasbourg court’s role in British law?

7 Mar

Dr Austen Morgan is a barrister at 33 Bedford Row chambers and was one of the UUP’s lead negotiators for the Belfast Agreement.

With the coronavirus pandemic, a £400 billion debt, levelling up, and Ukraine – events dear boy, events – crowding the political agenda, it is easy to forget that the 2019 parliament might have been identified with major constitutional reform.

In November 2019 – bliss it was in that dawn to be alive – the conservatives’ manifesto had promised a constitution, democracy and rights commission. This was a first in our political history.

Yet despite his 80-seat overall majority, but Brexit still to be completed on 31 December 2020, Boris squandered his chance. It was not the first time, and it will not be the last such exercise in statecraft.

The abandonment of the constitutional commission might have had something to do with letting Sir Geoffrey Cox QC go as attorney general in February 2020, in order to bring Suella Braverman back into government.

But maybe one should look directly to the ministry of justice and the lord chancellor, the affable Sir Robert Buckland QC, who had been appointed by Johnson in July 2019. Perhaps nostalgic for the Wales and Chester circuit of the bar in his eyrie in Petty France, Buckland made two strategic law reform mistakes.

First, in asking Lord Faulks QC to (yes) review judicial review, he let his officials stuff the commission with professional lawyers. They defended their territory.

Second, in asking Sir Peter Gross (a retired court of appeal judge) to review the Human Rights Act 1998, Whitehall excluded everyone with a track record on advocating a UK bill of rights, conservative and non-conservative. The Gross review, run from the ministry of justice, was captured by the human rights community – Europhiles to a man and woman – in the academic and charity sectors.

The Lord Chancellor seems not to have noticed he was serving in a sans-culotte government. Surely we all remember, on 24 July 2019, behind the black door, one Dominic Cummings hovering without a suit; Sir Mark Sedwill, the cabinet secretary, lurked in the metaphorical silk knee-breeches of the mandarinate, with a smile on his face.

Suddenly, in September 2021 (and trying to put the pandemic behind him), Johnson replaced Buckland with Dominic Raab, the Foreign Secretary.

Raab had been a junior minister (twice) in the ministry of justice, but, more importantly, he had worked as a lawyer before politics, and published The Assault on Liberty: What went Wrong with Rights in 2009. On 14 December 2021, and politely burying Sir Peter’s 580-page report (with recommendations visible only through a microscope), Raab told parliament there would be a consultation on a British bill of rights. This is due to end on 8 March 2022. He told the Commons:

“The Government’s proposals for a Bill of Rights will strengthen this country’s proud tradition of freedom, curtail abuses of the human rights system and reinforce the democratic prerogatives of elected Members in this House over the legislative process in respect of the expansion of human right. Above all, we will restore common sense to the system.”

So, where are we on a bill of rights? First, the Government appears committed to replacing the Human Rights Act 1998. Second, the human rights will exist in domestic law (which they do not do at present). Third, British judges will be the final arbiters of human rights. And fourth, there will be more, not less, human rights. So far, so good.

But it is not clear how Britain will continue relating to the Strasbourg human rights court. The UK is what is called a dualist state. It can keep its domestic law in one compartment. It does not need to worry about international law.

The UK will remain a member of the Council of Europe. It will not denounce the European Convention on Human Rights. But will it be able to push the Strasbourg judges out of the UK?

I have suggested in my consultation response that our Supreme Court should opine whether a case should go on to Strasbourg; saying yes might encourage the human rights judges to hear it; saying no might deter international appeals originating in the UK.

The biggest problem in the Government’s current thinking is its failure to break with the 1950 convention. After the Second World War, it was reasonable to see states as the violators of human rights. Seventy years later, we now know about terrorism, domestic and international. People are abused by others in civil society in many ways. Human rights are, or should be, invoked.

The state should not add to this grief (it has negative obligations), but should public authorities be vested with positive obligations to tackle every social and personal ill?

The Government, faced with a labour opposition able only to defend its Human Rights Act 1998 because it is theirs and a steady stream of absurd human rights stories, has a great deal still to do,

Three ways the ‘big bang’ strategy behind a British Bill of Rights could backfire on the Government

14 Dec

A ‘British Bill of Rights’ is a proposal from the David Cameron era. It does not appear in the Conservatives’ 2019 manifesto, which promises only to “update the Human Rights Act and administrative law” as part of the (now shelved) Constitution, Democracy, and Rights Commission.

In some ways, it makes sense that Dominic Raab has revived it. Talk of replacing the Human Rights Act has a relatively long pedigree in Tory circles. And as I noted last week, this Government’s own reform agenda is a shambles.

But like other Cameron-era innovations, such as the abortive quest for a ‘Sovereignty Bill’ to buy off the Eurosceptics, there is a danger that a ‘British Bill of Rights’ ends up owing more to an effort to seem tough than to actually addressing the structural problems that most concern centre-right constitutionalists. The former Prime Minister too often seemed keener on the appearance of change than change itself.

Here are three potential dangers from the Justice Secretary’s current approach.

1) It won’t deliver

The single biggest problem with proposals to ‘reform the Human Rights Act’ (HRA) is that the Act merely incorporates the European Convention on Human Rights into British law. So unless the Government either withdraws from the ECHR or delivers substantial reform to it at the international level, there are hard limits to what tweaking that domestic instrument can really achieve.

Moreover, even the current arrangements still enshrine the supremacy of British law inasmuch as Parliament is quite at liberty to legislate in contravention of the HRA. Ministers simply need to be prepared to have the Supreme Court deliver a declaration of incompatibility and say “Yes, that’s fine.” Failure to do that is a political problem, not a legal one.

(There are definitely issues around the way the HRA deals with old legislation and secondary instruments, but the broad point remains.)

Given all that, where does the additional leeway supposedly granted by a British Bill of Rights come from? It isn’t immediately obvious. In fact, it seems on the face of it to give more opportunities to the other side…

2) It will backfire judicially

Historically, there have been two broad tendencies when it comes to how the Supreme Court interprets human rights law. The first, which has been dubbed the ‘mirror principle’ and was advocated by judges such as Lord Bingham, advocated cleaving closely to Strasbourg’s judgments in the main whilst allowing leeway for divergence, usually in the direction the present Government would favour.

Another, advanced under the presidency of Baroness Hale, held that due to the HRA the convention rights were also and separately British legal rights, and it was therefore within the power of the Supreme Court to discover that they extended beyond what the court in Strasbourg would determine. This is the infamous ‘gold-plating’.

Lord Reed, as part of a broader and widely-noted shift towards a more restrained posture on the part of the Supreme Court under his presidency, seems to have put a stop to this. In his judgment in the case of R (on the application of AB (Appellant) v Secretary of State for Justice (Respondent), he wrote:

“…the intended aim of the Human Rights Act – to enable the rights and remedies available in Strasbourg also to be asserted and enforced by domestic courts – is particularly at risk of being undermined if domestic courts take the protection of Convention rights further than they can be fully confident that the European court would go.”

This creates a situation where, in the absence of certainty about Strasbourg’s intentions, the benefit of the doubt lies with the Government.

Again, if the ‘Strasbourg’ bit is still a problem that isn’t something a British Bill of Rights inside the Convention is going to solve. In fact, by explicitly moving in the direction of free-standing British rights (without a significant change in the origin or substance of those rights) it risks actually empowering the Hale view. Judges would be free both to exnihilate new rights off their own back and to take inspiration from other jurisdictions with more expansive approaches, such as Canada.

There are proposals to try and enshrine Lord Reed’s approach in statute, which might help. But it might not, or it might fail; judges interpreting their way around statute is one of those problems we’re supposed to be trying to solve, after all. Which creates the third danger…

3) It will backfire politically

The danger of creating the impression (and probably only the impression) of a blank-slate system of ‘British’ rights is not just that it will give judges the cover under which to resume freelancing. It is that it will make the political case for real reform harder to make.

Assuming it didn’t deliver real reform, it would place ministers in a difficult position. The origins of the problem – the New Labour constitutional settlement and the ECHR – would be the same, but they couldn’t admit this without admitting also that the much-touted British Bill of Rights was so much set dressing. The judges would be basing their decisions on legislation passed by a Conservative Government; it would suddenly be this party’s problem, and fault.

Overall, perhaps what’s most concerning about this is that it might end up taking the place of the sort of substantial, granular reform that the Government has previously been considering, such as reforms to the Supreme Court’s title and composition. It is also the opposite approach to the one underpinning the mooted plans for regular Interpretation Bills, which are (or at least should be) a much more carefully-targeted intervention.

Ultimately, if the bits of constitutional terrain the lawyers have captured over the past few decades were electorally sexy, politicians would never have allowed it to happen. Retaking them will involve a lot of small operations and detailed work, rather than ‘big bang’ interventions that will wow the electorate.

Conservative thinking on these questions has come a long way since Cameron’s day; we should be wary of dusting off his solutions.