British Bill of Rights

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 20th June 2013 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

My Lords, I hope not to detain your Lordships too long. Indeed, had I appreciated in advance what a wealth of legal and constitutional expertise was to be available to the House in this debate, I doubt that I would have troubled your Lordships at all.

I speak as one who, over the 13 years since the convention became part of our domestic law, has probably been involved in at least as many cases dealing with convention rights as any other judge in the country. The main reason I speak is to try to save my successors in the courts from what I believe would be the nightmare of implementing the majority’s central recommendation in this report; the nightmare of having to wrestle in the courts in future not merely with the complexities and uncertainties of the convention and of the vast body of jurisprudence that it has spawned but with those of a new UK Bill of Rights superimposed on it. I say “superimposed” because it is, of course, a given of the majority’s case in favour of a domestic Bill that it would in no way detract from the existing rights and freedoms under the Strasbourg convention. Rather, as the report states,

“such a Bill would incorporate and build on all of the UK’s obligations”,

under the convention.

The report presupposes the,

“UK’s continuing adherence to the European Convention on Human Rights and to the European Court of Human Rights as a given”.

It follows inescapably from this that the baseline of any future challenge would be whatever rights already exist under the Strasbourg convention and case law. Inevitably, it would be necessary to explore all this in full and to establish that baseline before the court proceeds to consider whether the UK domestic Bill enlarges upon that right.

Of course, I recognise that the position would be different in respect of any discrete rights that the UK Bill might introduce, such as specific environmental rights, or what are called socioeconomic rights, or, indeed, rights to a jury trial in certain cases. However, the introduction of those would be highly contentious and fraught with all sorts of difficulties, and in any event could be enacted entirely independently of the sort of full-blown UK Bill which I understand the majority of the commission to envisage.

What I understand to be the core justification in the eyes of the majority for restating all existing convention rights in different language in a new United Kingdom domestic Bill of Rights is what the report calls,

“the need to create greater public ownership”,

of the rights. According to the report, the majority suggest that this could be achieved if the Bill,

“was written in language which reflected the distinctive history and heritage of the countries within the United Kingdom”.

I pay tribute to the noble Lord, Lord Lester, for securing this debate, and indeed to his huge contribution over many years to the wider human rights debate. In his characteristically thoughtful personal explanatory note as to why he is prepared to join the majority view, he states:

“it calls for a restatement of civil and political rights and liberties in terms that respect our constitutional and legal heritage”.

With the best will in the world, the process that I sought to describe earlier of first having to ascertain the position under Strasbourg law and then seeing whether the claimant’s case can be advanced by reference to some additional rights under the UK Bill—I interpolate that the respondent’s rights could never be improved because there is no question of detracting from the Strasbourg rights—could never hope to persuade the public that we have somehow now come to own these rights.

The sad fact is that in whatever instruments and whatever language minority rights are enshrined, certain judgments which courts are on occasion required to give are bound to be deeply unpopular and to be misleadingly, and indeed mischievously, portrayed by some in such a way as can tend to alienate the public from the whole notion of human rights. Paragraph 82 of the report rightly refers to,

“the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media”.

Later, it quotes a witness speaking of,

“the climate of disrespect surrounding it”—

that is, the Human Rights Act—

“created and perpetuated by political and public figures and the media”.

In short, the convention, the Strasbourg court and in turn our own judges are all too often maligned. But ‘twas ever thus and regrettably it always will be. We do not, and indeed must not, outlaw unpopular minorities—prisoners, asylum seekers, immigrants and so forth—and we must not outlaw even the wicked. However, judgments in their favour often attract great hostility from the majority, and it is all too tempting for that majority, and even on occasion for government, then to blame the judges. Indeed, on one occasion in the Supreme Court I recall that we were shown Home Office minutes expressly recognising the impossibility of the Government’s position under established human rights law and yet suggesting that the Home Office should maintain its stance and,

“let the judges take the hit”.

No UK Bill of Rights is going to cure that sort of problem. Let us stay with where we have got to and try gradually to improve that situation.

I acknowledge the contribution made to the wider debate by this report, but for my part I would align myself with the minority.