In the Media

Bill of Rights 'won't change anything'

PUBLISHED June 28, 2006

The verdict from lawyers on David Cameron?s plans for a homegrown Bill of Rights was unanimous: "it won?t change anything."
Scrapping the Human Rights Act would still leave the European Convention on Human Rights in place as an overarching set of principles, they said.

The Government would still be unable to deport foreign nationals at risk of torture - one of the main drivers behind the push for reform. And the proposal also raises the prospect of a written constitution that would be superior in authority to Parliament - giving even more power to the judiciary.

Under the Human Rights Act, Parliament retains the upper hand and judges cannot strike down statutes as incompatible.

David Pannick, QC, a leading barrister in public and human rights law, said: "It?s very difficult to see what this proposal can usefully achieve.

"He?s not proposing withdrawing from the European Convention on Human Rights so we will remain subject to the jurisdiction of the European Court of Human Rights."

"Abolishing the Human Rights Act would be pointless if people retain the right to take their grievances to Strasbourg. Alternatively, we pull out of the Convention altogether, which means we have to pull out of the European Community. You can?t have it both ways."

Mr Cameron is arguing that a homegrown British Bill of Rights along the lines of the US Bill of Rights and the German Basic Law, would lead to a less hands-on approach by the European Court of Human Rights, giving more discretion to Britain in how to decide its human rights issues.

But lawyers today rejected that view. Mr Pannick said that he knew of no jurisprudence that would lead the the European Court to take a different approach to cases, depending on a particular country?s constitutional or human rights arrangements.

Ben Emmerson, QC, author of a leading textbook on human rights, said if a new Bill of Rights offered fewer protections than the Human Rights Act, it would be overruled in Strasbourg.

"There is a good argument of a domestic written constitution. But if a Bill of Rights offered protection that was less than that offered by the Strasbourg jurisprudence, it would fail to prevent cases going there."

He added that any domestic Bill of Rights would "inevitably reflect" the European Convention on Human Rights, which had been used for human rights charters across former Commonwealth countries.

Michael Smyth, partner and head of public policy at Clifford Chance, the City law firm, said he thought the proposal "good politically but likely to lead to problems legally."

"The problem will be moving from theory to practice. Mr Cameron says he doesn?t want to withdraw from the ECHR - in which case, what is all the fuss about?"

He questioned how a tailor-made Bill of Rights would differ from the Human Rights Act.

"If it contains the same civil and political rights, then why do we need it? If it is removing some of those rights, than that would be open to challenge in Strasbourg. If he wants to add to them, then it would be interesting to know what they are."

Human rights groups today voiced similar doubts. Justice, the law reform group, added that the Convention was not "a foreign document" but one drafted by British lawyers and Foreign Office officials after the Second World War to ensure "British liberties were enjoyed throughout Europe."

Eric Metcalfe, its director of human rights, said that whether there was a Bill of Rights or Human Rights Act, Britain would still be bound "by its international obligations to safeguard fundamental rights."

"Other European countries are bound by international law in the same way as the UK is; no country is allowed to deport an individual to a country where they face a real risk of torture, inhuman or degrading treatment."

Liberty said that the proposals contained misunderstandings. Countries with written constitutions were not given "special treatment".

Countries had some discretion over policies such as the age of consent. "But this would not apply to the practice of deporting foreign nationals who may face torture or ill-treatment at home."