jan zeber

Jan Zeber graduated in Law from the University of Bristol in 2014, where he chaired the Freedom Society. He is due to study for a Masters in Public Law at the LSE in September.

Just 48 hours after polling day, Downing Street confirmed that Michael Gove will be given the task of setting out plans for the replacement of the Human Rights Act with a British Bill of Rights, taking over from Chris Grayling as Lord Chancellor and Secretary of State for Justice. The reaction of the legal profession to his appointment has ranged from cautiously hopeful, citing his intelligence, fluent communication and a reputation as a thinker, to outright hostile, fearing they will share the teachers’ fate. This suggests that the ball is in his court – there is an opportunity for the former Education Secretary to show he is willing to rebuild the relationship strained under the previous administration.

By far the biggest challenge faced by Gove lies in persuading the public, which includes the unforgiving lawyers and campaigners, that the Conservative party is serious about human rights. The Human Rights Act, a New Labour reform introduced in 1998 under the slogan of “bringing rights home”, has come to be seen as being synonymous with the broader concept of human rights. Consequently, any criticism or talk of repeal draws accusations of being anti-human rights – that is the narrative that some campaign groups and much of left wing press have been able to create. The British Bill of Rights is an opportunity to prove them wrong.

To be a genuine, positive step forward, it must not be seen as an attempt to entrench narrow political interests, as some groups and commentators would currently see it. It has been pointed out that the Human Rights Act has failed to gain recognition in the eyes of many people not just due to the controversial rulings it has produced, but also due to the manner in which the Labour administration introduced it – it was seen at the time as a “political and legal elite’s pet project” with little effort to engage the public. Many legal commentators, in their defence of the status quo, miss this fact – whatever strictly legal merits the current framework, they are meaningless if they cannot command public confidence.

If the Bill of Rights is to avoid the same fate, Mr Gove should not rush it through amongst the usual opposition, up in arms, since that approach may well see it repealed some years down the line, just like the HRA. Instead, there is much to be said for extensive consultation.

Firstly, it would offer an olive branch to all those stakeholders who felt alienated by the previous administration. The legal profession understands perfectly the realities of Government and the difficult decisions regarding scarce resources that are involved, but feels hard done by due to the lack of engagement. Gove has already shown that his style of leadership suits this need well – when faced with opposition, he is willing to talk. Adam Wagner, a leading voice in UK human rights, has already indicated that the British Bill of Rights could be an opportunity to get things right this time round. The easing of the us-versus-them feeling would go a long way towards ensuring the Bill leaves a lasting, positive legacy.

Secondly, it would make the formulation of the Bill much more transparent, creating an opportunity to dispel fears about “scrapping human rights”. The Conservative party is a party of individual rights, yet the discourse is dominated by the Left, which has been allowed to frame the debate to portray Conservatives as willing to be swayed by populist sentiment against unpopular minorities. Traditionally, protection of the individual against the collective is precisely what Conservatives stand for – Mrs Thatcher must be turning in her grave.

We are already on the right track. Under the current proposals, the text of the European Convention would be reproduced in the Bill of Rights, sending a clear message that it is the 1998 Act that is the problem, not the original treaty that it was implementing. Neither would a Bill of Rights automatically mean withdrawing from the Council of Europe – the previously mentioned document clearly states that the UK would seek to work with the Council to reach a mutual agreement on modified terms of membership. Though currently somewhat unclear, all these proposed modifications would amount to is, firstly, making it clear our domestic courts are free to depart from Strasbourg jurisprudence (I say “making it clear”, because they already are) and secondly, that rulings against the United Kingdom by the European Court of Human Rights are not binding on the UK state, as they currently are under the terms of membership of the Council of Europe. It is of course true that we cannot change international law by domestic legislation, but changes that have already taken place within the Council, such as introducing the so-called “margin of appreciation” doctrine providing for a wider scope of interpretation of member state’s obligations, suggest there is likely to be a common way forward.

Arguably the most significant part of the current proposals, and the most ambiguous too, is the conception of “civic responsibilities”, as well as the “clarifications” of certain definitions in the European Convention, designed to steer their interpretation in a certain direction. They will affect how an individual experiences the operation of human rights in court, which means getting them right is of the utmost importance. Uncertainty surrounding the Bill played a large part in the hostile reception. The Prime Minister already stated that the Queen’s Speech would “pave the way” for the British Bill of Rights. It is an opportunity to further clarify for the public ambiguous parts of the proposals, such as the precise meaning of “civic responsibilities” and what role are they to play in judge’s balancing of rights, how deportation cases are to differ, or what will be the gist of “clarifications” and which definitions are likely to be affected.

But neither should they be set in stone at that stage. A British Bill of Rights would be unlike an ordinary act of parliament. If it is to be a foundation stone of what it means to be a British citizen, it calls for a much greater degree of public consultation. Michael Gove has a tremendous opportunity to leave a legacy of truly “bringing rights home”, but it will depend on whether he succeeds in constructing proposals that will unite, rather than divide.

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