Rupert Myers is a barrister, writer and Deputy Chairman of the Bermondsey & Old Southwark Conservative Association.
At the start of Annie Hall, Woody Allen tells a joke: two elderly women are at a Catskills mountain resort, and one of them says: “Boy, the food at this place is really terrible.” The other one says, “Yeah, I know, and such small portions.” It’s a paradox which encapsulates the critical response to the Conservatives’ proposed implementation to a British Bill of Rights. On the one hand such legislation has been described as “anarchic” and represents an “apocalypse”. On the other, the tinkering in the Bill is “not as significant as it sounds”. The backdraft from the human rights industry against the proposal does Michael Gove’s job for him, giving the impression of greater change than is surely being proposed, overplaying the hands of critics.
By floating the suggestion that implementation of the Convention in primary legislation will result in torture or more rights for the wealthy, law abiding majority – points that have been raised against the bill by barristers and legal commentators – critics are making this legal reform sound much more drastic than it is. Rather than introduce new rights – like greater protections of free speech and freedom of the press, or a human right to privacy – the most significant proposal does little more than bring clarity to an issue which has vexed British Judges for the last decade: the status of Strasbourg jurisprudence when determining cases in the Supreme Court.
If there were any UK group as keen to defend the constitutional status quo as America’s gun lobby it might be found within the human rights industry. Of the respondents to the consultation paper issued by the Commission on a Bill of Rights, half opposed legal reform, with only one quarter in favour of a British Bill. Despite readily acknowledging the unpopularity of the Human Rights Act, the same lawyers and writers who struggle to detoxify human rights have set themselves against the opportunity of a British Bill of Rights as a rebranding exercise allowing for a fresh start in the debate on rights free from the polarised debate which it has become in the media. This would be an opportunity to declutter rights from our position with Europe, which is being deliberately misconstrued by opponents of the Conservative government.
Baroness Kennedy QC and Professor Philippe Sands QC in their dissenting sub-report from the Commission “In Defence Of Human Rights” appear to believe that the whole exercise is no more than a sham designed to deprive individuals of liberties:
“It is impossible to speak of principle when the true purport is not being addressed explicitly and would include, for some at least, a reduction of rights.”
Such opponents display small-c conservativism in opposing the opportunity for reform. Their defence is based upon the scaremongering assertion that any modification will result in a reduction in the rights protected. Such opponents seem to insist that some laws are right in perpetuity, an argument which would have denied the creation of their now-cherished Human Rights Act, and would deny the benefit of the iterative process of legal reform.
Throughout the argument on a British Bill of Rights, among the staunchest supporters of the status quo have been human rights lawyers who tell anyone who will listen that the judges rarely make mistakes, that British justice is almost never overruled and that media alarmism is the problem. Does anyone believe that we have the balance right on free speech, privacy, or religious freedoms? Can we cling forever to a set of rights drafted before the invention of the internet? The legal traditionalism piled upon the Commission demonstrates a lack of radicalism and a lack of vision amongst a group of lawyers usually considered, at least by themselves, to be both progressive and radical.
The Conservatives believe that British Judges will apply the Convention rights more effectively than those in Strasbourg. I do not expect that human rights will become much more popular as a result – they will still protect unsavoury people – but that is their purpose, and it will be much easier for many to see that when the binding decisions are those of our own courts, under the rule of domestic law fit for this century. It may be flattering to be told that a document drafted by a Conservative politician is irrefutably and permanently correct, but it is an opportunistic argument made in an environment of opposition for opposition’s sake.
The daftest argument made by some lawyers is that the Human Rights Act is to be “scrapped”. This and similar choices of rhetoric aid the Conservatives in the popular coverage of the topic, but they are fundamentally disingenuous. Legal reform is constant. A Bill to reform the law on (say) smoking indoors to include a prohibition on the use of e-cigarettes might be welcomed by health campaigners; nobody would seek to argue that the laws on smoking indoors were being “scrapped” by the alteration.
Of course the Conservatives must make the case for a British Bill of Rights, as I expect them to, but the starting point must be to dismiss those critics whose fearmongering on the subject of the Bill has betrayed a dishonesty about the shape and scope of the project. Later in Annie Hall Woody Allen jokes that “I heard Dissent and Commentary had merged and formed Dysentery.” Whenever you hear someone talking about the destruction of Human Rights Act that this Bill represents, rather than addressing the case for reform, you are hearing the product of that merger.