An outsider could be forgiven for thinking that the Conservatives were not prepared for the possibility of having to promulgate a British Bill of Rights. As we see the birth pains of the government’s strategy for handling a referendum on our membership of the EU and hear that the Prime Minister rehearsed a resignation speech, it doesn’t look as if there was much contemplation of a majority Conservative government. The Bill, beset by critics before even being released for consultation, could handily have been shelved in negotiations with the Liberal Democrats. With the legal profession already engaged in warfare with the government on a number of fronts, the Bill of Rights could have been quietly bargained away. Denied that prospect, the reset button at the MoJ appears to have been pressed. Having looked at why criticism of a proposed British Bill of Rights is misleading, and at the appetite within the upper echelons of the legal profession for reform, what proposals should be on Michael Gove’s desk? Here are a few suggestions:
Far too much of the energy expended by legal commentators has been invested into demonising the very notion of a British Bill of Rights. Whether this is the product of Europhilia, mistrust of the government, or a wish to see the left remain the architects of Britain’s human rights legislation, it means that engagement with the genuine opportunity afforded by a Human Rights Act 2.0 has been limited. The first and most obvious area for reform is clear: statutory definition of the supremacy of English courts. This is the muddle into which, led by Lord Bingham, the English legal system has found itself. A British Bill of Rights could declare and affirm the supremacy of the Supreme Court, and limit the influence of Strasbourg’s judicial activism upon sympathetic domestic judges. A British Bill of Rights might determine that the judgments of the Strasbourg court are to be informative rather than binding.
In 1959 most of Europe’s citizens could seek privacy from the state and from the world at large simply by closing their front door. The Convention has no explicit right to privacy, and around Europe lawyers have struggled with the interpretation of the Article 8 right to a private life which has broadened and expanded at the determination of Strasbourg into something unrecognisable to the drafters of the Convention. Determining the scope of a right to privacy, and providing remedies for the infringement of such a right has not been the subject of legislative consideration. The evolution of the application of the Convention has had to take account of both the rise of modern technology and the social changes as to what constitutes a private life. The tension over the use of Article 8 to allow the representatives of terrorists to argue against deportation has been the subject of much argument, with reliance upon the right sometimes exaggerated by critics of the Human Rights Act. This does not undermine the fact that a radically expanded article of the Convention has been applied by the fiat of European judges. Even fierce opponents of reform would concede that the application of Article 8 to deportation cases has changed over time, and that the negotiation between the Strasbourg Court and governments involved in these cases have resulted in looser and tighter rulings depending upon the political climate. No law is right forever, and the right to a private life is long overdue legislative review.
The qualification of the rights to freedom of expression and religious freedom have caused widespread discomfort as society has changed over the last half century. The margin afforded to religious freedom has diminished, and the qualification of both rights has led to bitter dispute. It must be time for the consideration of a right to freedom of expression which is restricted only to a prohibition on the imminent incitement of unlawful conduct and the exploitation of minors is concerned. Currently there are genuinely-held religious views which it may well be unlawful to promulgate. The American solution, prohibiting restriction of expression via the First Amendment, should be considered and debated in an age where mass communication is available to us all. The European Convention was not drafted for the internet age in which we are all publishers, all able to express our thoughts to the world, but in which diminishing freedom of expression is tolerated. It may well be that such an unrestricted freedom of expression would alone afford the scope religious freedom required in modern society.
There can be no serious suggestion that Hersch Lauterpacht and David Maxwell-Fyfe could have believed that one day Strasbourg would have applied the European Convention extra-territorially to conflict zones. Within the last decade the UK government has been engaged in a number of disputes with Strasbourg over the monumental increase in the Court’s remit when it decided capable of holding governments to account for their actions towards individuals in conflict zones. At the time of drafting the Convention, states had signed up to and agreed the Geneva Conventions regulating warfare. Strasbourg’s decision to allow itself scope to consider the alleged abuse of human rights outside Europe and in conflict zones has been among the most shameless exercises in judicial activism in the name of the Convention. The human rights industry has profited from this invention, to the cost and detriment of the freedom of our armed forces. Tank-chasing law firms have engaged in litigation which has placed greater costs and pressure on the men and women who defend us. This was not the subject of bargaining or diplomacy, but the consensus of a small group of unelected European lawyers. To the extent that any future government may now be able to put this genie back within the bottle, it is surely time to allow elected politicians the opportunity to revisit this issue.
The difference between the activism of the US Supreme Court and that of the European Court of Human Rights is that Supreme Court Justices inhabit the common demos of the territory governed by the law. They are installed directly by the democratic process of the country whose normative social values they embody. They are exceptional individuals in many ways, as all judges must be, but there is a direct sense of accountability. This has been lacking from the European Court, and from the entire Human Rights project since inception. The British Bill of Rights presents the opportunity to debate these and other issues that have been left for too long to the whims of foreign and domestic judges. It can hardly be an immodest proposal that once every century or so we might revisit the scope given to judges to determine the boundaries of our rights law.