Bill of Rights: ‘Why I fear this will prove I was right to be worried’

December 16, 2012

This Tuesday, at 11am, a report which should have been of even greater significance than Lord Justice Leveson’s work on press regulation will be published. The Commission on a Bill of Rights will finally reveal its findings after a troubled 20 months of existence.

Day by day, reports of judgments on everything from anti-terrorist measures, to immigration issues, prisoner voting or the reporting rights of the media versus personal privacy show the all-pervasive influence of the current human rights system introduced in 1998.

When he announced the creation of the commission, David Cameron told the House of Commons that its aim would be to ensure that, on general political matters such as prisoner voting rights, decisions could again be made in Parliament and not in the courts.

I resigned from the commission last March, having written a memorandum titled “The Future of the Commission on a Bill of Rights: Some Serious Causes of Concern”. By then, it was clear that the commission would barely discuss the Prime Minister’s central concern. We will know on Tuesday whether my concerns were justified.

Several of my former colleagues on the commission have warned me not to hold my breath and to expect a disappointing and vague report.

In the manner of a former Whitehall mandarin, the chairman of the commission, Sir Leigh Lewis, was prepared to sacrifice substance in the interest of a show of unity between the four Cameron appointees and the four Clegg appointees In the event, that sacrifice was in vain. Members have found it difficult to agree on the vaguest of recommendations.

If the commission makes a majority recommendation, as seems likely, that there should in principle be a new British Bill of Rights, the report may do little more than set out options as to the contents. Indeed, such a Bill may merely replicate the rights already contained in the Human Rights Act of 1998, albeit possibly in slightly different wording, a new title, and with rhetorical references to British historical traditions – Magna Carta and all that.

Even if there is a different British Bill of Rights, people in the UK will still be able to take cases to the Strasbourg court under the terms of the European Convention on Human Rights, unless, of course, the UK alters its relationship with that international court.

At the behest of its Civil Service leadership, the commission made two basic errors. The first was to do too little work. Even if it could not hope to reach meaningful agreement, it surely would have helped to create understanding of the issues at stake had there been public hearings and research by leading scholars (rather than low-paid graduate students).

The second mistake was to take its terms of reference too literally. These reflected the wording of the Coalition agreement of May 2010 and were seen as severely limiting the scope of inquiry.

But a rapidly formulated, behind-the-scenes set of negotiations between small groups of party leaders can never hope to anticipate and decide all future issues for a complete five-year Parliament. When Mr Cameron told the Commons that he expected the commission to bring forward proposals to restore parliamentary sovereignty, he was saying something that technically went beyond the Coalition agreement. Thus his wishes were largely ignored by the commission.

Yet it is vital to discuss who should have the final say on matters of policy governed by a Bill of Rights; should it be British judges? Should it be judges of the 47-nation European Court of Human Rights at Strasbourg? Or, in the last resort, should it be the British Parliament?

Since most of the political controversy has not been about the rights contained in the European Convention on Human Rights, but about responsibility for deciding what those rights mean, neglect of the core issue of jurisdiction and the refusal to take seriously the concerns of the vast majority of MPs has made the work of the commission an exercise in futility.

This article originally appeared on The Sunday Telegraph’s website

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