Philippe Sands, Professor of Law at UCL and practising barrister in international law, and Helena Kennedy, a leading barrister and academic in human rights law, civil liberties and constitutional issues, were members of the 2011 Commission on a Bill of Rights. In highlights from a recent article in the London Review of Books, they discuss how human rights intersect with politics, examine the UK’s strained relationship with the European Convention on Human Rights, and question the possible motivations lying behind the proposed Bill.
In March 2011 the UK government established a Commission on a Bill of Rights, charged with investigating ‘the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties’.
We were appointed to the Commission by Nick Clegg. The circumstances were not auspicious, and we were concerned from the outset that our composition – all white, almost all male, almost all lawyers and London-based – would undermine our ability to speak with any legitimacy. The Conservatives had come into government committed to tearing up the Human Rights Act, an early product of the previous Labour government seen by many of the new government’s Tory supporters (and some in the media) as little more than a charter for foreign terrorists and local criminals. The Liberal Democrats, on the other hand, strongly supported the Act and the provisions of the European Convention on Human Rights that it introduced into UK law. There were eight members, under the chairmanship of Leigh Lewis, a retired senior civil servant who was hopeful that we might exceed the miserably low expectations of most commentators and come up with something useful.
We met in a deeply political environment. Hanging over our endeavours was an obscure judgment of the European Court of Human Rights that had ruled the UK’s ban on all prisoners getting the vote disproportionate and contrary to the European Convention. This was something of a leitmotif for our Conservative colleagues, emblematic of all that had gone wrong with the European Court, which on their view had taken the perfectly decent text of the European Convention (largely written by British Conservatives, we would regularly remind them) and transformed it into a European monster that was killing off parliamentary sovereignty and eating away at the foundations of the British constitution. By the end of our deliberations the prime minister had told Parliament, contrary to the advice of his own attorney general, that he would never implement the judgment. This dismal blow against the rule of law was something on which our commission maintained a discreet and sad silence.
We were thrown off course by unexpected rocks encountered at various points along the way. In the search for consensus, we wanted to know what the true objectives of our Conservative friends might be. Eventually, and only after some considerable effort, almost a cross-examination, we drew from three of our colleagues the admission that they wanted the UK to leave the European Convention as soon as possible – which extinguished any possibility of real consensus. What is the point of an agreement, we wondered, that joins those who see a Bill of Rights as a means of strengthening the connection with the Convention, with others for whom a Bill of Rights is at bottom a means of ditching the Convention and severing more links with Europe (with the added benefit, from our colleagues’ perspective, of allowing rights to be taken away from certain foreigners and criminals)?
The subject of foreigners (which we have come to understand as being broadly defined to include anyone living far away from London) reared its head in another unexpected way. It emerged that people in Northern Ireland, Scotland and Wales feel considerably warmer towards the European Court in Strasbourg than they do to the UK’s highest courts in London. Similar feelings were also expressed in Birmingham and other parts of England. Contrary to what we were being told by some of our colleagues as we met in the House of Lords, it seemed that the sense of lack of ‘ownership’ of the Human Rights Act was neither widespread nor deep.
Our first public consultation confirmed this: the responses were broadly supportive of the status quo, with the caveat that most people wanted more rights for more people, not fewer rights for fewer people. Concerned that the results might be misleading, the commission ordered a second consultation. To our amazement, satisfaction or horror (depending on perspective), it produced virtually the same result as the first.
After 18 months of deliberation and reflection, it was clear to us that there has been no upsurge of agitation and anger towards the Human Rights Act, the European Convention or the European Court. To the extent that these legal instruments touch the lives of the people in the UK, the evidence before us suggested that the effects were largely tolerated or supported. The intolerance and lack of support appear to come largely from UKIP and Conservative Party stalwarts in various parts of England where the issue of Europe remains charged. David Cameron’s position as leader seems increasingly questioned by sections of his party who want a speedy referendum on whether the UK should remain within the EU, and many of his backbenchers make little distinction between the Council of Europe (and its Convention on Human Rights) and the EU, which is entirely distinct. Knowing that it would be economic madness to withdraw from the EU, leading Tories such as Chris Grayling, the current secretary of state for justice, seem to treat the Convention as little more than red meat to be offered to backbenchers and members, without fully appreciating the risk that talk of withdrawal presents for the system as a whole.
In our view the Convention has brought important benefits for Europe and the UK. Individuals in 47 states are now able to take challenges to abuses of public power to an international court in Strasbourg. At home, the Convention has brought great benefits: it has, for example, reinforced our commitment to children’s rights and the rights of the elderly in care homes, to freedom of expression and assembly, and to protecting individuals from unfair extradition.
When appointed, we were entirely open to the possibility of the UK’s having a Bill of Rights. But now is not the time for it. On the contrary, it would pose considerable dangers, both in terms of the break-up of the United Kingdom and for the European Convention that the UK has nourished and which provides valuable safeguards around the whole of Europe. For that reason, we considered it more useful to prepare a minority report. The reaction to the majority opinion since the publication of the Commission’s findings makes it clear that the UK Bill of Rights has been kicked into the long grass.
Philippe Sands QC is Professor of Law at the UCL Faculty of Laws.
Baroness Kennedy is Principal of Mansfield College at the University of Oxford.