EVENT: ‘A unilaterally imposed, politically structured set of rights which privilege the type of people the Conservative party like over the kind of people they don’t like’, was the characterisation of Tory proposals for a British Bill of Rights to replace the Human Rights Act (HRA) put forward by barrister Adam Wagner at a debate on Monday night.
The debate – From Magna Carta to ECHR: Do we need a British Bill of Rights? – was organised by the Battle of Ideas and chaired by Claire Fox, director of the Institute of Ideas. Wagner shared a panel with barrister and writer Jon Holbrook; Martin Howe QC, a member of the government’s Commission on a Bill of Rights; Helen Mountfield QC, a barrister at Matrix chambers in London and civil and commercial litigation barrister Rupert Myers.
Responding to the question posed in the title of the debate, Wagner declared: ‘We have a Bill of Rights – the Human Rights Act. It is not particularly beautifully drafted but it smells like a Bill of Rights, it looks like a Bill of Rights, it tastes like a Bill of Rights – it is a Bill of Rights.’
The Human Rights Act is a ‘decent piece of legislation,’ continued Wagner. ‘It could be tweaked but in its short history it has secured significant wins for liberty.’ Responding to Daily Mail-esque portrayals of the HRA as a ‘human rights farce’ , Wagner added that by ‘wins for liberty’ he did not mean ‘prisoners getting porn in jail’ but rather ‘fundamental liberties’ that the European Convention on Human Rights (ECHR) was designed to protect.
An ‘unreformable’ court
While the ECHR was ‘well-drafted’ and contained a ‘statement of rights that we all agree with’, we are no longer left with the Convention itself, argued Martin Howe QC – a long-standing proponent of replacing the HRA with a British Bill of Rights.
Howe accused the European Court of Human Rights of ‘using specious arguments to make up new laws’ which ‘bear no resemblance to the wording of the Convention.’ The European Court’s interpretation of the ECHR has become ‘absurd’ and ‘ludicrous’, he said, before concluding that the Court had reached a stage where it had become ‘unreformable’.
‘We need to move to a situation where the power of interpretation of the ECHR is moved from Strasbourg into this country…so that delicate decisions are dealt with on our shores by people who understand our culture and our norms.’
Martin Howe QC
Bringing rights home
Wagner hit back at Howe’s ‘non-sequitur’ argument that we need a British Bill of Rights because the European Court is delivering ‘bad judgments’. ‘The Human Rights Act brought rights home – the vast majority of human rights judgments every year are happening in our courts here,’ said Wagner.
Adding that there are only about ten judgments per year from Strasbourg, with two or three of those on ‘highly controversial’ issues, Wagner said: ‘but they are not perverse judgments’. ‘Judges in the UK have the power to ignore Strasbourg,’ he said. ‘But they have been following it because they have decided it’s a pretty decent way of running the human rights system.’
A wrong turning point
Barrister and writer Rupert Myers echoed Martin Howe QC’s contention that British judges should be the final arbiters on British laws. Describing the Tories’ proposals for reform as nothing more than a ‘modest tweak’ to the current system, Myers argued that the best place to balance rights against national responsibilities is ‘at a national level.’
Quoting Lord Justice Laws, Myers added that when judges decided to treat Strasbourg decisions as authoritative it represented an ‘important wrong turning point in our common law’. He welcomed the ‘one thing of any major significance’ contained in the proposals – that decisions of the European court will be treated as ‘advisory’, not ‘binding’. ‘This is not about not trusting Europe,’ said Myers. ‘It’s about trusting British judges.’
Britain needs a Bill of Rights because ‘states are so much more powerful than they ever were,’ argued public law specialist Helen Mountfield QC at the debate. But the Human Rights Act is a ‘perfectly good constitutional settlement’, she added.
‘The language of the ECHR represents a profound belief that the best foundation for justice and peace is maintained on the one hand by effective political democracy and on the other, by the understanding of human rights.’
Helen Mountfield QC
The anti-European Court ‘howls’ from the Daily Mail, The Sun and the Lord Chancellor, Chris Grayling, suggest that the ‘ballot box is the only legitimate form of accountability’, said Mountfield. ‘But democracy is more than a ballot box: it’s the underpinning rules, such as freedom of expression, and the rule of law, and the ballot box.’
‘The ballot box hasn’t provided for the rights of everyone,’ she added – citing the example of Irish republicans during the Troubles in Northern Ireland, who ‘weren’t protected from torture’. Agreeing with former Attorney General Dominic Grieve’s forthright criticism of the proposals, Mountfield concluded: ‘this is puerile.’
Rights growing like topsy
Barrister and writer Jon Holbrook – who argues for the expansion of lawyer-free zones, and fewer laws – told the debate that although he is ‘against human rights’, that does not mean he is ‘in favour of torture’.
Different views exist on how prisoners and travellers should be treated, argued Holbrook. ‘Because I don’t want to give prisoners the vote doesn’t mean I want to string up all prisoners,’ he said, arguing that the ongoing prisoners’ voting debacle was a ‘good illustration of that great poverty of reasoning in a great many Strasbourg judgments.’
Holbrook argued in favour of ‘natural rights’ such as free speech, a free press and the right to freedom of association, where ‘the state stays out and the individual has freedom to do things.’
Such rights are ‘wholly different’ from the sorts of rights everyone talks about now as human rights under the HRA, he said. Today’s rights, which have ‘grown like topsy’, do not restrict state power but expand the state, argued Holbrook, citing the right to welfare benefits as an example. ‘If you want liberty, tear up human rights legislation,’ he concluded.
Despite the Chair’s attempts to have both sides of the debate aired, proponents of the reforms were few and far-between. Rounding off the evening, Adam Wagner pointed out that the greatest supporters of the plans to scrap the Human Rights Act were justice secretary Chris Grayling, ‘who is in charge of prisons’, and Home Secretary Theresa May, ‘who is in charge of immigration.’
’Do the maths,’ said Wagner. ‘We’d have fewer immigrants and harder prisons if the Human Rights Act was gone. This is all about power.’
Author: Mary-Rachel McCabe
Mary-Rachel McCabe is a barrister at Doughty Street Chambers. She specialises in social welfare law and children’s and women’s rights. She tweets @MaryRachel_McC