Today a reform promised some ten years ago appeared before the House of Commons: the ‘British Bill of Rights’ promised back in David Cameron’s time, a promise promptly ignored. It is a scrap of the red meat promised to the backbenches, and another rare thing to see: something the Manifesto promised us actually being done.
This is the ‘Bill of Rights Bill’ (which will become if passed not the ‘Act of Rights Act 2022’ but the ‘Bill of Rights 2022’). It is not the first Bill of Rights: we have the Bill of Rights 1688 and the Claim of Right 1689 still in place. They are grand but practical declarations of freedoms we now take for granted without thinking of them. The new Bill is certainly not that, and is unworthy of the name of its forebear. It may be just what was squeezed out of a committee. That is not to criticise it: the Bill does what has been trailed, as a practical tidy-up, not a new order.
Don’t expect to get excited by the new Bill of Rights – this is not 1688 nor 1789.
The first thing is that the Bill repeats the rights set out in the European Convention des Droits de l’Homme (not every Article, as many are introductory or concern the court in Straßburg), but all the actual rights are recited. Blair did it by just referring to the Convention as a known thing – this Bill sets the relevant Articles and Protocols out, which is the normal and proper way for Acts of Parliament incorporate treaty conventions.
‘Which rights do you disagree with then?’ is the usual (understandable) accusation thrown at those who rail at Strasbourg law. The answer here is ‘None: the rights are all exactly as we would have them – it is just the interpretation which is a problem.’
The issue with the rulings pumped out by the European Court of Human Rights in its ivory tower in Straßburg is that it has declared, of its own authority, that the Convention does not mean what is written plainly in the text but is a “living document” to be interpreted widely according to the changing spirit of the age, or at least the spirit of the sort of people who sit as judges. This ‘living document’ doctrine allows them to disregard the parts they do not want and to invent entirely new rights that would not have entered the heads of those who agreed it. The Bill is meant to deal with that.
It does look mean-spirited: having recited the lofty liberties, the Bill then takes aim at rulings which have prevented the expulsion of foreign criminals, in particular the ‘family life’ argument (which is a self-fulfilling argument: land on the beach, smile at a local lass, and you are immune from expulsion, or so it has been alleged). It clears up other little annoyances too: there is no claim for things the armed forces do on active service outside the British Islands (they might think about adding ‘or British overseas territories’ there, but a certain ‘Death on the Rock ruling still rankles). All these are in essence replies to outrage on the pages of the Daily Mail and from Priti Patel’s office.
In the same category you might place the odd Clause 4, on Freedom of Speech, that “a court must give great weight to the importance of protecting the right”. Yes, good – but will the court not be giving great weight to all Convention rights? This needs some beef, like repealing existing laws on offensive or distressing speech, or specifically protecting against discriminatory treatment those who express dissent on political or social matters. It is not there. The clause sets out to do good, then fizzles out. Perhaps it was sent to a civil servant to do and he responded “Do I have to?” and put in a minimal job of work.
It does mention trial by jury as the way we do fair trials in this land. It does tell courts not to demand the disclosure of journalists’ sources unless the really want to. That is thin gruel for a Bill which could have been used to bring in a newly libertarian age.
If this Bill were serious about entrenching liberties, it would not be so cowardly: if it were serious, it would go through all illiberal legislation since the Blair years and strike them down. It does not. It fizzles out.
See also
- Things they won’t do with the British Constitution
- Hate speech: the Denning solution
- The work begins: constitutional reform
- Some foolish Opinions of Lawyers concerning the making of Lawes
- The necessity of normality
- Sir Humphrey’s logic
