Why Michael Gove should drop his Bill of Rights plans

by Carl Gardner on May 9, 2016

Today the House of Lords EU committee has published its report on “The UK, the EU and a British Bill of Rights”. It’s quite a wide-ranging report covering for example the respective scope of the ECHR and the EU Charter of fundamental rights, the enforcement of each in national law, and the impact of any Bill of Rights on EU cooperation. But its most important conclusions are on the necessity and desirability of a British Bill of Rights at all.

The British Bill of Rights, it says (Chapter 3, para. 45)

as outlined by the Secretary of State appeared a far less ambitious proposal than the one outlined in the Conservative Party manifesto

and (para. 46)

The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act—we note in particular that all the rights contained within the ECHR are likely to be affirmed in any British Bill of Rights. His evidence left us unsure why a British Bill of Rights was really necessary.

The committee concludes (para. 47) that

If a Bill of Rights is not intended to change significantly the protection of human rights in the UK, we recommend the Government give careful thought before proceeding with this policy.

What’s more, the committee looks in Chapter 8 at the difficulty a UK-wide Bill of Rights would face given the likely refusal of legislative consent by the Scottish Parliament, the opposition of the Welsh Assembly (whose attitude is unlikely to have changed after the recent election), the likely political row it’d trigger in Northern Ireland and the concerns of the Irish government. It concludes (para. 183)

The difficulties the Government faces in implementing a British Bill of Rights in the devolved nations are substantial. Given the seemingly limited aims of the proposed Bill of Rights, the Government should give careful consideration to whether, in the words of the Secretary of State, it means unravelling “the constitutional knitting for very little”.

None of these concerns are new: the devolution difficulties are known (see what Mark Elliott and David Allen Green have written) and the gradual dilution of the government’s plans has also been clear to see. Still, the committee’s report confirms and gives authority to the case against change.

Incidentally, in chapter 6 the committee considers and unsurprisingly rejects the idea of the German Constitutional Court as a model for Britain. Nonetheless I expect this unkillable weed of an idea will continue to be sown, even though it’d wipe out our native constitutional flora.

We’re still promised a consultation this year on whatever remains of the Bill of Rights plan; but surely all the logic of policy and politics says the idea should be shelved.

First, the committee is right: this is becoming a mouse of a policy, that’s likely to achieve little anyway. Even the more radical noises made by the previous Lord Chancellor were more sound and fury than substance. It’s not worth giving the SNP a new grievance to use against Ruth Davidson, for instance, and no Unionist can relish the idea of disturbing the relatively settled position in Ireland.

Conservatives have already essentially won the human rights “debate” in Britain and in Europe, and it’s unlikely we’ll soon see another row like the one over prison votes. The horse is safe behind the stable door, and needs no fancy new lock. But only withdrawal from the European Convention on Human Rights—the extreme option now favoured by Theresa May—could absolutely guarantee no new conflict with Strasbourg. If one breaks out, as things stand Tories can moan about “Labour’s Human Rights Act”, and they’ll be right: it is Labour that brought it in.

If, though, “Labour’s Human Rights Act” is replaced by “the Tory Bill of Rights” there would only be Tories to blame for any human rights aggro. The Conservative party would “own” human rights, and it’d do no good to claim “the Bill of Rights isn’t at fault” any more than it helped Labour to say—rightly—that Abu Qatada wasn’t kept in Britain by the Human Rights Act. So relabelling the Human Rights Act with a few tweaks would be a political blunder for Conservatives. If a few changes are needed to the Human Rights Act, it’d be far shrewder to package them as amendments, not as an entirely new and Tory human rights settlement.

Nor can human rights policy unite Conservatives. Now Theresa May is calling for withdrawal from the Convention a “British Bill of Rights”, which occupies much the same place in Tory thinking as David Cameron’s EU renegotiation, would settle nothing. The Conservative row about human rights would just go on anyway. It’s not worth Michael Gove spending political energy on legislation that even his own party might want to repeal within a year or two, whose passage would inflame Tory Eurodivision at a time when Eurohealing will surely be in order (however we vote in June), and that would unite Labour when it desperately needs things to unite around.

Conservative human rights policy can’t be settled until after the coming leadership contest, so it’s obvious the party should hold off on legislation till then. If Theresa May succeeds, she’ll face the frightening problem of how to withdraw from the ECHR while keeping the UK together, and Northern Ireland calm. Any other leader could reassess what if anything could be gained by a Bill of Rights.

Michael Gove’s most sensible policy now is to quietly drop Bill of Rights plans. It’s also the most conservative policy, with a small or a big C.

 

{ 4 comments… read them below or add one }

1 David Radlett May 9, 2016 at 14:10

There is a middle way between Theresa May’s legal illiteracy (how does she propose that the UK remain in the EU if it withdraws from the ECHR – presumably as a non-voting member after action is taken against us under Art 7 TEU) and the undesirability of facilitating the rule of domestic judges via the Human Rights Act 1998. That middle way is to repeal the HRA and replace it with – nothing. The ECHR then reverts to its former status of (mere) international law. In this form it serves as a useful monitor of executive action without the pernicious, incremental judicialization of such action.
Of course, the only effective way of abrogating the pernicious, incremental judicialization of public life via Luxembourg (as seen in the unilateral cancellation of the UK’s opt-out from the Charter of Fundamental Freedoms effected by the Luxembourg court in NS (Afghanistan) v Secretary of State for the Home Department) is to leave the European Union.

2 Gavin Steele May 10, 2016 at 11:04

Indeed the logic of POLICY says it should be shelved – that’s a no-brainer – but, sadly, it’s not necessarily the logic of the POLITICS. There’s a majority – possibly even a large one – of Tories, many of them misled by tabloid bollocks but quite a few of them simply hung up on “sovereignty” at all costs, who are ready to go “all the way” on this. It has become an ideological crusade for some. Witness the numbers when Parliament voted on prisoner voting.

Moreover, a cabal of top people in government – from the carefully-placed and nauseatingly compliant Attorney General Jeremy Wright, to the Leader of the House of Commons and Master of the Dark Arts Chris Grayling, to the ruthlessly driven Dominic Raab at the Ministry of Justice – are constantly needling away at this, seeking ways around the vast political problems you spell out. And ultimately – as the MoJ spokespeople patiently repeat with each new assault on the ridiculousness of the whole thing – the government has a “mandate” to do this. The Conservatives promised to do it, the people elected them to do it, and the Queen herself has said it will be done. That’s indisputable – and hard to get around, if you’re a democrat.

So while I’m with you – and the Lords committee, and anyone else who knows the first thing about it – that the whole misconceived nonsense should be binned, I fear we’re a long way from that yet. Sadly, it is all too possible that ignorance, ideological animus and tub-thumping tabloid tosh may yet win the day.

From a political point of view, the only – thin and wavering – flicker of light came just after the Queen’s Speech a year ago when (so we were told) only the clear opposition of a handful of unnamed human-rights-oriented Tories prevented the government from plunging ahead with a BBR. We know who they are, this thin blue line of Good Chaps – Dominic Grieve, Ken Clarke, Crispin Blunt and a handful of others – but they are a small and vulnerable minority, the dogs bay at the gate, and Grayling, Raab and the others lurk in powerful corners of Westminster plotting their worst.

Finally, who knows what strange new winds will blow after the EU Referendum? If Brexit comes off, the BBR Brigade will be in the triumphant ascendant, and seeking to forge ahead with the anti-European agenda. And if it doesn’t, they’ll still be looking for a compensatory kill in Strasbourg…

3 Tony Butler May 20, 2016 at 08:13

I fail to comprehend the logic of creating a second Bill of Rights, which coupled with Magna Carta and The Bill of Rights, and our Common Laws and Customs, is adequate.
Firstly we need to outlaw the practice of4 The Law Society, the private club of legislators from gaining jurisdiction over people by duplicity and legalise.
Legislation being made sovereign over Constitutional Law is a criminal act.
The Law Society can only legislate over its members, not the population. That is the Law.
As Winston Churchill stated:”Magna Cart, now here is a law that even the King must obey and any abrogation of the laws contained therein may be ignored without fear of legal consequence. And the King has commanded should any such abrogation succeed that the people rise up and join with the nine Barons to assail the homes of those responsible, except those of the Queen and her children, and those members of Parliament who voted to allow it.”
The Barons’ warning to the Queen, signing the EU Treaty in 2001 was forbidden by law and her Oath of Succession was ignored.
The Barons declared the Government void, and unlawful, and the
People have risen up and sworn oaths of allegiance to the cause of restoring British sovereignty.
And you gentlemen twiddle your thumbs and discuss a pointless piece of legislation with the EU enemy at our door?

4 other legal services May 26, 2016 at 12:28

that the whole misconceived nonsense should be binned, I fear we’re a long way from that yet.

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