The politically controversial idea of a UK bill of rights, may – writing in advance of any new government – be about to take off, in the new context of a possible convention to draw up a codified constitution for a federal UK.
Human rights (the liberty of the subject) have been traced from magna carta. However, after the second world war, the UK ratified the European convention on human rights (which led later to the Strasbourg court). Tony Blair sought to bring these rights home, with the Human Rights Act 1998 (HRA). But human rights in the 2000s – with 9/11 in the US and 7/7 in the UK – failed to acquire sufficient legitimacy in domestic politics.
Thus, the Conservatives have promised to ‘scrap the Human Rights Act, and introduce a British [sic] Bill of Rights’. And the Labour, Liberal Democrat and Scottish National Party have come out in favour of defending the 1998 Act.
The opposition to change is surprising.
In the early 1990s, Labour called for the incorporation of the European convention, to be followed by a domestic bill of rights. David Cameron, elected leader of the opposition in 2005, stole these clothes shortly afterwards. In 2012, the Conservative/Liberal Democrat commission, chaired by Sir Leigh Lewis, signalled the replacement of the HRA 1998 by a UK bill of rights.
This idea, paradoxically, chimes with European human rights. First, the Strasbourg court’s doctrine of subsidiarity, sees the 47 member states of the council of Europe doing human rights mainly at home. Second, the micro-managing of so many justice systems with individual petitions, has led to a crisis: the human rights court still has a backlog; it long ago gave up on serious fact finding; and its legal reasoning is increasingly mechanical. Third, there are better ways of dealing with, for example, Russia and Turkey (and now Ukraine) through state to state cases or, more realistically, the committee of ministers and/or the parliamentary assembly of the council of Europe.
There is another Europe, namely the EU, with 28 member states, its own charter of fundamental rights and foreign policy. The EU has stalled on its reverse takeover of the council of Europe, through acceding to the human rights convention. But the parallel regime at the court of justice of the EU (where human rights are considered in terms of socio-economic policy), is eminently superior.
If the EU has an uncertain future (based upon difficulties in the Eurozone, to which the UK does not belong), that of the council of Europe is surely more precarious, as a broader but less deep international organization.
Human rights first became constitutional, in 1791, with amendments one to ten of the 1787 US constitution. The rights of individuals and states, it is interesting to note, were pitched against federal institutional interests.
The debate about a UK bill of rights got off to a bad start in the late 2000s. This is because human rights professors, non-governmental organizations (national and international) and UK quangos – a veritable fourth branch of government over-reaching the legislature, executive and judiciary – adopted a simple position of uncritical support for Strasbourg, and international, or European, human rights standards.
Now, the idea of domestic courts taking over from Strasbourg, vetoed by the liberal democrats during the last government, is likely to be caught up in forthcoming referendums. First, if the Conservatives return to office, there will be an in/out EU referendum – modelled on the 1975 Wilson one (which was not designed to pull the UK out of the common market) – by the end of 2017. Second, while the SNP eschews any interest in a second referendum in Scotland, it is not so clear that it would not seek to have another go after the 2016 Scottish parliament election.
The UK’s constitutional tradition may be characterized as pragmatic, comprising a series of ad hoc measures (including union with Scotland in 1707 and then Ireland in 1801). Sinn Féin failed to break up the UK, but the Scottish nationalists now threaten that outcome. A federation would stop them in the next parliament or two. But that will require the constitutional innovation of a codified constitution, based upon the new principle of popular sovereignty. And, precisely because the state may be recomposing itself in an unprecedented manner, there will be an even greater need for a constitutional cornerstone of individual rights.
Austen Morgan is a barrister at Thomas Bingham Chambers, where he is head of public law. You can read more of his articles at www.austenmorgan.com