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.