Thursday, 10 March 2011

Is there a case for any form of British Bill of Rights?

Law and Lawyers recently took an initial look at the report "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).


  1. Thank you for opening this discussion and the relevant links contained.

    Look like their is a case but a complicated one to impose or bring in.

  2. Most of my previous posts in relation to human rights have tended to (a) oppose any withdrawal from the European Convention and (b) support the Human Rights Act 1998 but it is necessary to consider carefully whether any changes might be required - e.g. a British Bill of Rights (and Responsibilities). I am sure that this is a topic we will revisit many times. A sensible "review" of where the UK is with regard to human rights ought to take place. It is just over 10 years since the HRA 98 came into force now might be a good time for such a review. However, the review should not be based on pre-conceived ideas and that, unfortunately, may not be the case.

    Other matters requiring "review" might well be the devolution arrangements for Scotland, Wales and NI. There are some serious stresses and strains within the "Union" over how this has developed.

  3. Ed (not Bystander)12 March 2011 at 14:20

    My excessively succinct review of how the convention and the HRA are working in this country:

    Article 6 has been a very positive thing.

    Article 10 seems to be a tabloid newspaper's charter. I heavily disapprove.

    Article 8 seems to be the illegal immigrant's charter. Come illegally, destroy your papers, claim "asylum", lie and lie. Have some kids. You now have the permanent right to live in the UK. Is there any way in which article 8 does NOT function to provide an absolute right to stay in the UK if you have a child here, regardless of your conduct?

    The less said about Strasbourg's legally binding (under current law) decisions on the functioning of British democracy, the better. What happened to the margin of appreciation?

    The article 8 point (and to a lesser extent the voting point) above matters not only because it is wrong, and because it is visibly wrong. It matters because there will at some point be a backlash, and it will not be pretty.

  4. " 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".

    Prisoners Votes Campaign

  5. There should have proper implementations of laws. If the Human Rights Act 1998 is to imposed necessarily there is a valued aspect with regards to the Convention of this Bill of Rights. It will be much better if the lawyers will act on these issues.