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Note from AJ: I cannot believe that this is happening. In order to understand the full complexities, you need to read the complete text at: http://www.lrb.co.uk/v35/n01/philippe-sands/in-defence-of-rights In Defence of Rights Philippe Sands and Helena Kennedy We were appointed to the Commission on a Bill of Rights in March 2011 by Nick Clegg. The circumstances were not auspicious, and we were concerned from the outset that our composition – all white, almost all male, almost all lawyers and London-based – would undermine our ability to speak with any legitimacy. The Conservatives had come into government committed to tearing up the Human Rights Act, an early product of the previous Labour government seen by many of the new government’s Tory supporters (and some in the media) as little more than a charter for foreign terrorists and local criminals. The Liberal Democrats, on the other hand, strongly supported the Act and the provisions of the European Convention on Human Rights that it introduced into UK law. There were eight members, under the chairmanship of Leigh Lewis, a retired senior civil servant who was hopeful that we might exceed the miserably low expectations of most commentators and come up with something useful. We met in a deeply political environment. Hanging over our endeavours was an obscure judgment of the European Court of Human Rights that had ruled the UK’s ban on all prisoners getting the vote disproportionate and contrary to the European Convention. This was something of a leitmotif for our Conservative colleagues, emblematic of all that had gone wrong with the European Court, which on their view had taken the perfectly decent text of the European Convention (largely written by British Conservatives, we would regularly remind them) and transformed it into a European monster that was killing off parliamentary sovereignty and eating away at the foundations of the British constitution. By the end of our deliberations the prime minister had told Parliament, contrary to the advice of his own attorney general, that he would never implement the judgment. This dismal blow against the rule of law was something on which our commission maintained a discreet and sad silence. By a happy contrast, just a week earlier, Theresa May had underscored the government’s à la carte approach to human rights when she embraced other judgments of the European Court in deciding to intervene to stop the hacker Gary McKinnon being sent to the US, because to do so ‘would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with [his] human rights’. Our deliberations were generally genial and collegial, and all the more so after the loss of one of our Conservative members, the political scientist Michael Pinto-Duschinsky (who managed with admirable agility to jump in mid-air, having been pushed off the ledge by his own side). Even so, we all knew that our views ranged so far across the political spectrum that the chances of meaningful consensus were not high. Still, we did all try very hard. We were thrown off course by unexpected rocks encountered at various points along the way. In the search for consensus, we wanted to know what the true objectives of our Conservative friends might be. Eventually, and only after some considerable effort, almost a cross-examination, we drew from three of our colleagues the admission that they wanted the UK to leave the European Convention as soon as possible – which extinguished any possibility of real consensus. What is the point of an agreement, we wondered, that joins those who see a Bill of Rights as a means of strengthening the connection with the Convention, with others for whom a Bill of Rights is at bottom a means of ditching the Convention and severing more links with Europe (with the added benefit, from our colleagues’ perspective, of allowing rights to be taken away from certain foreigners and criminals)? The subject of foreigners (which we have come to understand as being broadly defined to include anyone living far away from London) reared its head in another unexpected way. It emerged that people in Northern Ireland, Scotland and Wales feel considerably warmer towards the European Court in Strasbourg than they do to the UK’s highest courts in London. Similar feelings were also expressed in Birmingham and other parts of England. Contrary to what we were being told by some of our colleagues as we met in the House of Lords, it seemed that the sense of lack of ‘ownership’ of the Human Rights Act was neither widespread nor deep. Our first public consultation confirmed this: the responses were broadly supportive of the status quo, with the caveat that most people wanted more rights for more people, not fewer rights for fewer people. Concerned that the results might be misleading, the commission ordered a second consultation. To our amazement, satisfaction or horror (depending on perspective), it produced virtually the same result as the first. After 18 months of deliberation and reflection, it was clear to us that there has been no upsurge of agitation and anger towards the Human Rights Act, the European Convention or the European Court. To the extent that these legal instruments touch the lives of the people in the UK, the evidence before us suggested that the effects were largely tolerated or supported. The intolerance and lack of support appear to come largely from UKIP and Conservative Party stalwarts in various parts of England where the issue of Europe remains charged. David Cameron’s position as leader seems increasingly questioned by sections of his party who want a speedy referendum on whether the UK should remain within the EU, and many of his backbenchers make little distinction between the Council of Europe (and its Convention on Human Rights) and the EU, which is entirely distinct. Knowing that it would be economic madness to withdraw from the EU, leading Tories such as Chris Grayling, the current secretary of state for justice, seem to treat the Convention as little more than red meat to be offered to backbenchers and members, without fully appreciating the risk that talk of withdrawal presents for the system as a whole. When appointed, we were entirely open to the possibility of the UK’s having a Bill of Rights. But now is not the time for it. On the contrary, it would pose considerable dangers, both in terms of the break-up of the United Kingdom and for the European Convention that the UK has nourished and which provides valuable safeguards around the whole of Europe. For that reason, we considered it more useful to prepare a minority report. The reaction to the majority opinion since the publication of the Commission’s findings makes it clear that the UK Bill of Rights has been kicked into the long grass. This is the text of our report: In March 2011 the government established a Commission on a Bill of Rights, charged with investigating ‘the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties’. We accepted appointment with an open mind about a possible new Bill of Rights for the United Kingdom, on the basis of terms that to us were clear and left no room for doubt on a crucial issue: any future UK Bill of Rights must ‘incorporate’ our obligations under the European Convention, and its rights must ‘continue to be enshrined in UK law’. Perhaps in setting the terms, and rooting our remit within an acceptance that the UK would remain part of the established European system, it was hoped that a high level of agreement might be reached. That has not been possible, because three of our number appear to us to be committed to a UK Bill of Rights as a preliminary step to withdrawal from the whole European system. We have been pleased to join with our colleagues on certain important aspects of the Commission Report, in particular the recognition that now is not the right time to embark on changes to the Human Rights Act. There is broad agreement that future developments should await the outcome of the Scottish referendum, after which a Constitutional Convention would be the best place to consider these matters, within the context of a wider constitutional review, one that allows all parts of the United Kingdom to be involved in a suitable manner. We are pleased also to support the Commission’s interim and final advice to the government on reform of the European Court, which sets out a number of areas in respect of which we believe that certain specific changes could be made which would be helpful and desirable. There are of course court decisions here and in the European Court with which one may reasonably disagree. In general, however, we believe that the European Court (as well as the Convention) has played a vital and positive role in contributing to the promotion of human rights across Europe, even if it is far from being a perfect institution. The challenge is to continue improving on its functioning, as we have sought to do in our domestic courts over recent decades. We are unable, however, to join our colleagues on the central issue, namely whether in principle we are in favour of a UK Bill of Rights. It is impossible to speak of principle when the true purport is not being addressed explicitly and would include, for some at least, a reduction of rights. We consider that the moment is not ripe to start moving towards a UK Bill of Rights until the parameters of such proposals are clearly set out. We note in this regard that our colleagues in the majority have, in our view, failed to identify or declare any shortcomings in the Human Rights Act, or in its application by our courts. We consider that it would be preferable to leave open the possibility of a number of options that, without prioritisation, could be addressed by a future Constitutional Convention. These options include maintaining the status quo, or adopting a new and free-standing Bill of Rights, or moving to new constitutional arrangements that would incorporate and build on the rights protected by the Human Rights Act. In reaching this conclusion we have been influenced by three important factors, all closely connected: devolution; the responses to our consultations; and the view of some of our colleagues on decoupling the connection between the United Kingdom and the European Convention. We return to these points below, but before doing so it is appropriate to place our work in context. The major part of the text is to be found on the London Review of Books website at http://www.lrb.co.uk/v35/n01/philippe-sands/in-defence-of-rights Context, Devolution, Consultations, Decoupling, The content of a UK Bill of Rights, Our conclusion