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.