Human Rights Act 3The Conservative party’s plan for a British Bill of Rights is “rubbish”, the leading public law and human rights barrister Dinah Rose QC said last night. She was answering questions after her lecture, entitled “What’s the Point of the Human Rights Act?” at an event in central London organised by the conservative think-tank, Politeia.

In response to Joshua Rozenberg, the Blackstone Chambers silk said

What’s so tragic about the Conservative policy paper is – it’s just so rubbish.

The paper shows, she said,

no sensitivity to or awareness of the difference between public international law and domestic law

and she went on to call the paper

so damn stupid.

Dinah Rose began her lecture with the famous 18th century case of James Somerset.

Somerset’s Case is one of the earliest articulations of what is now known as the principle of legality: the notion that fundamental rights have an inherent force at common law. Such rights cannot be interfered with except by clear, positive law, authorising the interference.

The concept of fundamental common law rights, she said, is spelt out in Blackstone’s Commentaries, and in the eighteenth century British enforcement of rights was a source of pride:

The Sublime Society of Beefsteaks, with its slogan “Beef and liberty” pretty much summed it up: liberty, and fundamental rights, were British values: as British as roast beef itself.

Yet in recent times

the Human Rights Act (though in substance a relative success) has been in public relations terms pretty much of a disaster for our civil liberties. Rights … are now popularly regarded as a foreign imposition, beneficial only to foreigners and criminals.

Given our own tradition of common law fundamental rights, Rose asked,

do we need the Human Right Act and the Convention at all? And if so, why?

I would suggest there are two main reasons in principle why we might need the Convention and the Human Rights Act. The first is because there might be some gap in the scope of the substantive rights protected under our own common law, which could only be filled by reference to the Convention.  The second is that the Convention and the Human Rights Act offer a constitutional framework for the enforcement of rights which would otherwise be lacking in order to ensure their effective protection.

While the common law has done much to protect freedom of expression, liberty, open justice and access to courts, Rose said, that’s not the case with the article 8 Convention right to respect for private life.

I wonder whether one of the reasons why article 8 has been so difficult for the press and the public in Britain to accept is that it never was recognised as a common law right, and unlike virtually all the other rights in the Convention, it actually is, in some sense, an alien imposition. Of course the situation isn’t helped by the fact that article 8 has also been the subject of some of the most creative law making on the part of the Strasbourg court.

How, she wondered, might courts protect human rights if there were no Human Rights Act? It’s possible, she said, that the common law might develop further to fill the gap:

If Parliament were to legislate to abolish all judicial review entirely (which is obviously quite a temptation for the current Secretary of State for Justice) … the courts might either interpret the legislation so strictly as to deprive it of any meaningful effect or even, much more radically, it’s possible that they might conclude that Parliament had no power to enact legislation to abolish the courts.

But such hypothetical cases are extreme. In the more usual case where Parliament has legislated in a manner which appears to restrict a fundamental right, the courts will apply the principle of legality: the very same principle that was applied by Lord Mansfield in Somerset’s Case.

She said the classic modern articulation of this principle of legality is that of Lord Hoffmann in R v Home Secretary ex parte Simms in 2000, and that there’s potential for the principle of legality to develop,

particularly in circumstances in which there is no other effective mechanism for protecting fundamental rights; and especially if Parliament were to enact legislation that blatantly violated a fundamental right (for example, authorising the deportation of an individual to a country where they faced a real risk of torture).

There is, she said, a delicate balance between the powers and functions of the government, Parliament and the courts, which the courts must respect. But

in order for our uncodified constitution to work effectively, it is equally necessary that Parliament and the executive also appreciate and seek to maintain that delicate balance. They must also give proper respect to the role and functions of the courts, and to the rule of law.

Rose criticised ministers’ recent “unfortunate practice” of spinning unwelcome court rulings and attacking judges, specifically mentioning David Cameron’s remark that the idea of giving prisoners the vote makes him “physically sick”.

This sort of reaction matters. It corrodes respect for the courts and the legal process amongst the public, if the government abuses or attacks the judges. This sort of reaction by government to adverse judgments, picked up enthusiastically by the press, is one of the major reasons for the collapse of public regard and respect for the Human Rights Act.

Referring to Monday evening’s defeats for the government in the House of Lords on proposed judicial review reforms – the government is attempting to limit judicial discretion in a number of areas, including to deter charities and campaign groups from intervening in judicial review cases by imposing more directive rules on costs – she said

it is unconstitutional in the true sense of the word for Parliament to seek by primary legislation of this type to fetter the discretion of a court when it’s managing the hearing of a challenge to a government decision. Matters such as the payment of costs should be left to the court which is hearing the case. They should not be micromanaged by the state.

At the end of her lecture, Rose turned specifically to the Conservative plans for a British Bill of Rights:

The policy document in which these proposals was published was unsophisticated, and contained a number of obvious legal errors.

Conservatives, she concluded

ought first of all to be in the business of conserving what is valuable in our traditions. Our fundamental rights and freedoms, and the operation of our common law system which protects them, are foremost amongst those values. But if the government does not understand or respect the system, the risks of doing irreparable damage will be unacceptably high.

In questions following the lecture, Rose told the prominent UKIP supporter Stuart Wheeler (who asked about the European Arrest Warrant) that yes – the EAW system is compatible with the Human Rights Act. He seemed initially to find that answer hard to believe: “Yes, it’s inconsistent?” he asked. But she assured him that in the Julian Assange case

Lord knows, if there had been a human rights point we would have taken it.

In answer to a later question, she agreed that abandoning the Human Rights Act and falling back on common law might end up, ironically, creating even greater problems for Conservatives than they face now.

There is a risk of the law of unintended consequences … Judges abhor a vacuum. If you take their toys away, they’ll make up new toys.

Dinah Rose’s lecture was important not just because of her criticism of Conservative and government policy, but in particular because of her discussion of the “principle of legality” and its future potential as an alternative means of rights protection in a post-Human Rights Act world.