David Cameron's ideas for a British Bill of Rights raise a host of difficult constitutional issues, writes Roger Smith


David Cameron has now appointed his ‘commission’ to develop his idea of a British Bill of Rights as an alternative to the Human Rights Act. With a rather bold indifference to political correctness and modern practice, it is composed of six men with a woman secretary. Dominic Grieve MP, Mr Cameron’s shadow Attorney-General, heralded its announcement by remarking in a rather downbeat way that this ‘major enterprise… will not be rushed’.



The key issue is whether Mr Cameron has found a way out of his dilemma on human rights: to support the European convention but keep onside of those outraged by the Human Rights Act. After all, a Bill of Rights is the usual demand of long-time human rights activists like Lord Lester QC and Baroness Kennedy QC. By contrast, Mr Cameron announced his commission in the context of a speech denouncing the Act as impeding the fight on crime.



One of those subsequently appointed to the commission, Martin Howe QC, set out his position in a paper last year: ‘As the European Court of Human Rights at Strasbourg has made plain, states are entitled to a “margin of appreciation” when taking such decisions. The convention does not dictate when and in what circumstances it is the courts or the legislators who should be exercising that “margin of appreciation”.’



Therefore, he argues, Parliament should be able to limit our rights under the convention and the European court’s jurisprudence to fit domestic circumstances. This is also what Mr Cameron hinted at in his speech. Such a conclusion is somewhat counter-intuitive because it would be a licence for any country simply to ignore the convention. Belarus could be welcomed into the fold and criticism of Russia’s backsliding on civil liberties could cease because they would say that they were only adjusting rights to local circumstances.



But the whole point of the convention is that it provides a judicially protected framework. Our Parliament can, of course, repeal the Human Rights Act. That would not stop, and would even be likely simply to encourage, applications to the Strasbourg court for the judicial enforcement of convention rights by which the UK would remain bound.



Any honest consideration of a Bill of Rights must begin with the assumption that the European convention provides a floor of rights to which supplementary rights may be added. This raises a range of questions. For example, would there need to be political consensus on any additional rights? That is what has led the attempt to draft a Bill of Rights for Northern Ireland into the ground. Yet it is logical that there should be cross-party and widespread public agreement. A document called a Bill of Rights surely purports to be more than the usual politically partisan statute.



The difficulties are enormous, however. Take the one right that is most often quoted as ripe for a Bill of Rights: jury trial. This is already severely restricted, and the government is embarking on its fourth attempt to remove the right from serious fraud cases. So the only wording around which there might be consensus is something like: ‘A defendant shall have the right to trial by jury in appropriate serious cases.’ That is not worth much.



What is more, the phrase ‘Bill of Rights’ suggests a permanency lacking in a normal statute. But as any constitutional law student will tell you, no Parliament can bind a successor. The name suggests a constitutional status that would be extremely difficult to confer. It is true that documents like the Magna Carta and the 1688 Bill of Rights echo down the centuries, but these reflected major shifts of constitutional power that gave the documents a legitimacy and authority beyond most ordinary legislation.



A statutory declaration against amendment would only work if there was sufficient agreement to hold it aloof from challenge. Otherwise, you could try entrenching particular procedures – such as requirement of approval by both Houses of Parliament or ‘super-majorities’ of some kind – but even these would be vulnerable to repeal by a simple Bill in the usual form.



The final sticking point is likely to be the role of the judiciary. All governments tend to encroach on rights as they carry out the reforms that they so desire – Mrs Thatcher set herself against collective trades union rights, Tony Blair against individual liberties. The whole idea of human rights is to protect minorities from the tyranny of majorities. Ultimately, the convention gives judges the power to uphold rights that would, otherwise, be curtailed.



So, the Cameron commission will have its work cut out. However, it is likely that we will not hear from them for some time. Mr Grieve has said he does not want them rushed, and it took all of nine months for them to be appointed from the date of announcement. It is not at all clear that this is a serious or honest exercise. The commission will need some ingenuity to meet the expectations upon it.



l Justice has published an interim report of a committee on a Bill of Rights. An electronic copy is available free from edouglas@justice.org.uk.



Roger Smith is director of the law reform and human rights organisation Justice