Bringing Rights Home ...." and noted that it was the European Convention on Human Rights which has, especially since the Human Rights Act 1998, acted as a moderating influence against the tide of authoritarianism emerging from within the British Parliament. The "think tank's" report has been criticised by Aidan O'Neill QC - see UK Supreme Court Blog "Bringing Rights Home - Again?". Mr O'Neill argues that the UK could not abandon the European Convention and yet remain a member of the Council of Europe and the European Union.
Nevertheless, the European Convention on Human Rights does not guarantee the British citizen all that he or she might desire. For instance, there is nothing in the Convention to protect jury trial. After all, continental legal systems developed in different ways to our "common law" system - (see Diverse Systems of Law). All that the Convention demands
is a "fair trial" and there is obviously enormous variety in the methods by which this might be achieved.
It was interesting to come across an article written in July 2006 by Martin Howe QC - "A British Bill of Rights" - where a persuasive case is made out that we need to make some changes if our traditional liberties are to be protected. The approach advocated here would not require the U.K. to abandon the European Convention on Human Rights but " ..... should leave Parliament and elected politicians to decide those issues which should be subject to democratic accountability. It is entirely compatible with our membership of the European Convention on Human Rights that many of the decisions under the Convention which require one right to be balanced against another or a Convention right to be balanced against other interests, be taken by our politicians and legislators rather than by our courts." This viewpoint presupposes a Parliament which is able and willing to devote time to the detail of the balancing exercises required. Further, if the aim is to give the judges less discretion in their decision-making on individual cases then any legislation will have to be more detailed.
A further interesting, though lengthier and scholarly, document is "A British Bill of Rights: informing the debate" by the British legal and human rights organisation Justice. This was prepared in September 2007. It is exceptionally informative and includes much information about the approach to human rights protection adopted in some other British Commonwealth (and other) states.
Addendum 11th March: Additional links of interest - UK Supreme Court Blog 29th November 2009 and Conservative Liberty Forum British Bill of Rights and Obligations - (author Jonathan Fisher QC).