Human Rights: A British Bill of Rights is Not Good Enough!

At the Conservative Party conference last month, British Home Secretary Theresa May pledged to scrap the Human Rights Act and so withdraw from the European Convention on Human Rights, replacing it with a British Bill of Rights. Such legislation could not provide the protection currently afforded by the ECHR. By James Bartholomeusz.

The Magna Carta of 1215 provided the first legal rights in Britain and a historical basis for later civil rights.

The Magna Carta of 1215 provided the first legal rights in Britain and a historical basis for later civil rights.

The Magna Carta is currently on tour around Britain in preparation for its 800th anniversary in a year in a half’s time. The branding for the anniversary describes the artefact as “arguably history’s most important document” – whilst this might be somewhat overblown, the encoding of civil rights into English law in 1215 nevertheless represents a landmark in global political history. There are many theories as to why Britain has always (except for a brief period in the mid-17th Century) eschewed chaotic revolution in favour of gradualist reform; one is that the check placed on state power early on prepared the ground for stable enfranchisement centuries later. As a result, the UK has perhaps enjoyed the longest unbroken period of governmental continuity in the entire world.

Rights do not only promote stability, they promote justice; and the 1950 European Convention on Human Rights (ECHR), built off the 1948 Universal Declaration of Human Rights (UDHR), has perhaps done more than any other single measure to promote justice on the continent since the Second World War. After the galling inability of national constitutions to protect minorities and refugees in the first half of the 20th Century, the extension of inalienable rights to all humans existing in Europe, stateless or otherwise, has been a major achievement. The current British government’s commitment to de facto withdrawal from the Convention is, therefore, particularly concerning.

The UK has been subject to continental human rights law since 1950, but it was only with New Labour’s 1998 Human Rights Act that those principles were encoded into domestic legislation. If nothing else, the cost advantages of this move cannot be disputed; appeals on grounds of the ECHR can now be heard in London, not Strasbourg. Yet the British Right has long taken issue with human rights legislation being imported from Brussels, for many of same reasons that it opposes European immigration and budgetary law: it cannot stand the thought of non-natives having a say over the fate of the country, as if the UK were nothing less than an absolute, self-determining entity, an independent fortress floating in the North Atlantic.

Antagonisms have been fermenting for years (with overly-bureaucratic health and safety legislation being the most satirised aspect) but it is the Abu Qatada case that has brought the issue to a point of frenzied confrontation. If Theresa May were to name an arch-nemesis it would surely be the radical Islamist cleric who, granted asylum in the early ‘90s over the possibility of his persecution in Jordan, proceeded to involve himself in terror plots against the UK. The marathon attempt at his deportation, estimated to have cost the British taxpayer £1.7 million, was due in part to repeated blocking by the European Court of Justice (ECJ), concerned that torture was a real possibility were he to return to the Middle East. After over three years as Home Secretary, May finally succeeded in ousting him from the country in July of this year. The experience has provided an emotive club to Eurosceptics with which to beat both the ECHR and the ECJ in the British media.

Theresa May, having finally ousted Abu Qatada from Britain, has committed to scrap the 1998 Human Rights Act in the next Conservative manifesto.

Theresa May, having finally ousted Abu Qatada from Britain, has committed to scrap the 1998 Human Rights Act in the next Conservative manifesto.

It was on 30th September, during her speech to the Tory party conference, that May finally made explicit her commitment to scrapping the Human Rights Act in the next Conservative manifesto. Earlier governmental announcements had been more restrained. In a pre-conference interview with Andrew Marr, the Prime Minister expressed his support for a British ‘Bill of Rights’ to work with the ECHR and act as a buffer against potentially unhelpful ECJ rulings; another suggestion was that Britain might establish a Supreme Court along American lines to establish a set of constitutional norms. Yet Cameron appeared to have no good answer when challenged over how precisely these measures would function in a direct confrontation with the ECHR. As with so many EU-related announcements, half-hearted gestures towards compromise have given way to a stark for-or-against choice. In lieu of the Human Rights Act, the Justice Secretary, Chris Grayling, has announced a provisional document for a Bill of Rights followed by a full draft bill later next year.

May’s additional call for a “modern slavery bill” to deal with human trafficking is certainly welcome on the level of principle, but it remains unclear how it would work in practice. The Lisbon Treaty locks Britain into supporting free internal migration between all EU states, and as such the UK Border Agency and police force are required to work closely with their continental counterparts in ensuring legal enforcement is consistent across national boundaries. Like many other policy areas, Britain may like the idea that it can act unilaterally to stop human trafficking, but, in reality, it is co-reliant on the efforts of France, Spain and Italy. The instigation of UK-exclusive legislation poses the risk of a ‘legal step’ between the country and its neighbours, allowing traffickers to exploit loopholes and lack of cooperation between nation-states.

A similar problem plagues the idea of a British Bill of Rights. This is not necessarily objectionable in itself. It could provide a much-needed common cultural reference point, and a starting-point for future reforms – consider, for example, how the American abolitionist and civil rights movements pivoted on citing the Declaration of Independence injunction that “all men are created equal”. However, it is hard to see how in hard legal terms a Bill of Rights could supplement the existing Human Rights Act. It is a mark of just how comprehensive the ECHR is that cases of injustice are more due to a failure to properly enforce its provisions than any lack of legal mandate. Tales of terrorists granted lenient treatment and economic migrants supplied with mansions abound in the media, yet advocacy organisations such as Liberty and the British Institute of Human Rights have consistently praised the protection the Act affords to those most in need of it. The risk is that, in replacing it with a Bill of Rights, the ability of courts to defend the vulnerable will be severely restricted.

British Eurosceptics love to drape themselves in the Union Jack, revelling in the patriotic memory of a nation standing alone whilst the continental mainland succumbed to fascism. Every country needs its foundational myths to some extent, but this infantile ‘small island’ nationalism has to stop. Britain is, quite clearly, not the great power it once was, and yet the contagion of the Eurozone crisis seems to have reawakened a chauvinistic, delusional strain in the country’s political imagination. Modern civil rights might have their origin in the Anglo-American tradition, expressed in the Magna Carta and the US Constitution, but human rights – those that transcend national boundaries and for which Britain ostensibly fought against Nazism – are a French and wider European innovation. It is the latter, not the former, that protect those who not enjoy the luxury of just democratic government. Britain should think a little harder before so casually discarding such an important achievement.

Image ‘Magna Carta’ courtesy to anselor via, released under Creative Commons 2.0.

Image ‘Speech to Home Office staff’ courtesy to ukhomeoffice via, released under Creative Commons 2.0.

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