‘Bill of Rights’ consultation shows how bad laws get made
For anyone curious to see the process of rubbish ideas being turned into statutes that operate sub-optimally, I recommend reading the second consultation of the ‘Commission on a Bill of Rights’.
This is not to say that Sir Hugh Lewis, the commission’s chair, is doing a uniquely bad job. But Lewis and other commission members, eight eminent Queen's Counsel, are being used.
(Presumably some Whitehall mandarin is right now sitting in the Athenaeum, quietly pleased to have kept pesky solicitors off ‘his’ commission’s membership - although, all credit to the list’s author, nice to see ‘a’ woman - Helena Kennedy QC - will be on hand to shape the next iteration of Albion’s constitutional setup.)
Gazette readers will be familiar with the myriad myths that surround the human rights act, from cats that prevent criminals being deported, to the notion that the act is something to do with our ‘gone-mad’ health and safety culture.
For the Conservative party, years of media and political animosity towards aspects of the human rights act latterly coincided with a pre-election association to civil liberties issues - most visible in common campaigning with Liberty.
The notion of a British-only Bill of Rights emerged post-election as a neat device to allow David Cameron to position his party as simultaneously anti-human rights act, and willing to stick up for citizens’ rights.
To those on Cameron’s right flank, the Bill of Rights could become a way to water down the range of rights bestowed by the human rights act, while telling UK citizens that their new reduced rights were more special because they were ‘British’. (Of course, there are those who told the first consultation that a British Bill of Rights could go further than the HRA on some counts, though one senses from the second consultation that they are not in the ascendant.)
In that context, the very process of this commission’s consultation favours HRA opponents.
Without a consultation the weight of evidence is very much with the HRA’s supporters - because so many of the counter-arguments are based on lies, some of them famous lies, all of them technically casual.
But in a consultation all submissions, even rubbish ones, are promoted to the rank of ‘evidence’. They get citations, appendix numbering - the sheen of respectability they previously lacked. The commission has already begun to do this in its second consultation, reporting that submissions have identified problems with the operation of the HRA. Politicians and civil servants who would like to see a watering down of folks’ legal rights then get to reference, not flimsy tabloid stories, but points ‘uncovered’ by a consultation exercise run by a commission composed of eight ‘eminent’ QCs.
Consultation exercises such as this always end up aiding those who lack a technically correct argument in their attempt to translate their preferences into public policy. Whatever the commission recommends, its members will have aided that process.
And that, all too often, is the way that, even with expert advice and the standards imposed by the civil service code, the policy implemented sits in a mid-point between the rational and the irrational.
As a closing thought, while I suspect solicitors were not even considered for the commission’s membership, I’d like to think that if asked they would be too sensible to serve such a flawed process.
Eduardo Reyes is Gazette features editor
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