A fundamental fudge

European Court of Human Rights

Yesterday, the nine-person commission on a UK bill of rights released its findings after nearly 20 months of consultation, investigation and review. Its conclusion? Well, they are not really sure. At best, ‘wait and see’ until after the referendum on Scottish independence (devolved assemblies hate the idea of a UK bill of rights) and, at worst, ‘we can’t quite decide’. Indeed, there is a sense of  ‘the current European Convention on Human Rights is a good model and should be protected, but that’s clearly not what the government wanted to hear and we can’t possibly say that’. So, to an extent, this is a fudge to cover the cracks in the coalition.

On the face of it, it can be hard to see why lawyers, devolved assemblies and human rights groups are making a fuss about the distinction between a UK bill of rights and the ECHR. Surely one is as good as the other, and, if anything, wouldn’t it be nice to have a ‘British’ set of rights?

If it were that simple, many would agree. However, this topic is being used by the jingoistic, Euro-sceptic right as a dog-whistle to entrench anti-European sentiment. So nothing particularly new there. The problem this time, however, is that people’s rights are at stake. By pushing for a UK bill of rights, the government is trying to create an ‘either/or’ scenario, even though the commission was specifically guarded with ensuring that the proposed bill of rights ‘incorporates and builds on all our [ECHR] obligations … and ensure that these rights continue to be enshrined under UK law’.

Despite the dog’s breakfast of a report, there are three reasons why the protection of the ECHR is vitally important to progressives and for us to understand that what this discussion is really about.

First, the government is misleading the public on the true nature of the ECHR. The Human Rights Act, which brought the ECHR into domestic law, is perhaps one of the proudest pieces of legislation created by Labour in the last government. Despite rightwing rhetoric, it (and the ECHR) is an inherently British Act. The ECHR was largely drafted by an English lawyer, Sir David Maxwell-Fyfe, under the watchful eye of Winston Churchill. Its aim, in part, was to bring a sense of British individual rights to mainland Europe following the end of the second world war. To that extent, the incorporation of the ECHR was very much about bringing rights home. By bemoaning the ECHR and the Human Rights Act in principle, or implying that the rights within the ECHR are imposed on us by some European bureaucrat, the government is effectively damaging Britain’s own record on fundamental rights.

Second, the government is misleading the public on the true nature of fundamental rights. The commission talks about the ECHR not being popular or ‘owned’ by the British public. Well, that is the point. Fundamental rights are above any one government, mood of public opinion or moment. They are supposed to be awkward at times. They are there to protect all people with the same set of rights, even if that may at times sit uncomfortably with the public mood. Being detached from the fractious Westminster influence is a good thing. These rights are fundamental, and so an objective, European judge is as able to determine them as well as an English judge. Labour understood this almost 15 years ago, and it also understood the importance of not playing politics with such an important piece of legislation.

Third, the Tories are playing politics with something fundamental. It is interesting to note that the only Labour member of the commission, Baroness Kennedy QC, dissented, with the Liberal Democrats split over whether to support a UK bill of rights replacing the ECHR. Another way to slice the decision is by who appointed the committee members: those appointed by David Cameron backed the UK bill of rights, those who favoured the ECHR were appointed by Nick Clegg.

Labour’s inclusion of the ECHR into national law under the Human Rights Act categorically shows that we believed that such rights are inalienable, and should be at the front and centre of our legal system. It protects us from torture and slavery, and enshrines in law the right to liberty, open and fair justice and to protest. It upholds freedom of speech, the right to a private life and to religious freedoms. On such matters, we do not play politics.

In 1998, Labour set in place a set of inalienable rights that would protect all members of society, even if at times it went against government policy. The ECHR continues to allow the judiciary to stand up to the executive, regardless of which government. It has also, arguably, reinvigorated a sense of British rights in the past decade. There have been instances where it has resulted in prolonged litigation in what appeared as one-sided cases (e.g. Abu Hamza). But for each one of these awkward decisions, there is now in place a ‘rights culture’ that empowers and protects the most disadvantaged in society.

The government is pushing for a UK bill of rights to make this an attack on Europe rather than a protection of individuals’ rights. By extension, they are disregarding the fundamental nature and importance of the ECHR. Britain, along with Belarus, would be the only members of Europe not to be signed up to the ECHR if the government had its way. From an international perspective, this would have serious implications for our moral authority when telling the rest of the world what we think of their actions. By fudging the rights culture with a two-tier system of UK bill of rights and the ECHR, both rights would be diluted and convoluted as the UK bill of rights could be overturned in Strasbourg and English judges may feel obliged to ignore the ECHR in favour of the bill of rights.

There are, of course, areas where the ECHR can be improved: the backlog of cases is horrendous to say the least, but, at its core, is a set of fundamental rights designed to protect all members of society. History has taught us that it is the least well off and most disadvantaged in society that are in need of fundamental rights the most. That is why we must take this debate seriously and oppose any attempt to roll back the ECHR.

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Bilal Mahmood is an international commercial lawyer who currently practices in the City of London. He is treasurer of Walthamstow CLP

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