Papering Over the Cracks of a Divided Government – A Commission on a Bill of Rights

By Sadiq Khan MP

Recent months has seen the issue of how we legislate to protect our human rights become a big political football. A commission has been established by the Tory-led government, charged with investigating the creation of a British Bill of Rights. You might be mistaken in thinking the coalition were creating something new – that this country is lacking legislation that protects our human rights, or that what is already in place is somehow substandard and that a Bill of Rights would rectify these deficiencies. In fact, the situation we find ourselves in is far less imperfect than some in the government – particularly on the Tory backbenches – would have us believe. The very objective of the new Commission – to look at the creation of a British Bill of Rights – seems rather confused. After all, we already have a “Bill of Rights” that fits the bill of protecting human rights – Labour’s 1998 Human Rights Act.

The roots of our human rights legislation lay in the aftermath of the Second World War. The European Convention of Human Rights (ECHR), which Churchill and his Conservative Home Secretary, Maxwell Fyfe, played a key role in establishing, was designed to safeguard basic human rights and freedoms. We ratified the treaty in 1950, accepting the jurisdiction of the ECHR. It was a Labour government in the 1960s which recognised the role of the European Court of Human Rights, and it was Labour again who enshrined in domestic law the legal rights in the ECHR with the introduction of 1998’s Human Rights Act.

Since then, the ECHR and, separately, the UK courts (using the Human Rights Act) have ruled against modern day slavery, stopped victims of rape from being cross-examined in person by their alleged rapists and entitled a mother to include the name of her deceased husband on their child’s birth certificate, amongst other common sense decisions we hear little of in the media.

The Commission on a Bill of Rights, forged in the white heat of coalition deal-making, represents nothing more than a political fudge. It just looks like a way to paper over the cracks in a divided government, rather than a genuine attempt at constitutional reform. After all, the two parties campaigned at the last election on diametrically opposed stances – the Liberal Democrat’s manifesto committed to “protecting the Human Rights Act” whereas the Conservatives sought to “replace the Human Rights Act with a UK Bill of Rights”. So it seems a reconciliation of these two opposing positions is pretty unlikely.

On close inspection of the terms of reference of the Commission, it appears it will look at a Bill of Rights “that incorporates and builds on all our obligations under the European Convention on Human Rights” – cocking a snook at those on the Tory benches that favour withdrawal from our European obligations, and broadly in line with Labour’s position.

Labour’s position is clear – the 1998 Human Rights Act stands tall as one of our many proud accomplishments in government and we will fiercely oppose any attempts to repeal or water it down. However, we are prepared to engage in constructive debates about the formulation of a Bill of Rights that incorporates and builds on the existing human rights legislation. It is a mammoth task and one that needs wide consultation. That’s why it’s strange that the Commission – despite being full of distinguished legal brains of a very high calibre – does not include those who have benefited directly from the legislation or the groups that represent those most vulnerable and in need of legal protection of their rights, including charities and campaigning organisations.

Nor does it include any sitting or former MPs, which is surprising given the criticisms by some that the current human rights legislation challenges the supremacy of parliament. It does, however, include the Director of Research for the Society of Conservative Lawyers, who is on record as saying the European Convention on Human Rights is “fundamentally flawed and lop-sided” and “hopelessly unbalanced”. It is difficult to square this with Clegg’s comments on the Human Rights Act – that “any government would tamper with it at its peril”.

The fear is that this will play further into the hands of those who criticise the legislation as being too legalistic, something dreamt up by laywers, away from the real life experiences of citizens whose rights it is designed to protect, and somehow unaccountable to elected representatives. To me, the partisan and unrepresentative nature of the commission is a mistake.

Criticisms of the Human Rights Act are often misplaced and sometimes deeply disingenuous, doing untold harm to our human rights standing. Therefore it is incumbent on those who support the Act to do more to tackle the myths and misconceptions that surround it, and the media has a duty to report on it in a responsible manner.

Further, there is a contradiction at the heart of the position taken by those opposed to the Act, often conflated with disquiet with pan-European human rights laws and structures. Labour’s Human Rights Act actually domesticated European human rights legislation. It brought home the rights which previously were only exercisable through costly and slow Strasbourg courts. Now British citizens can seek redress in British courts, in front of British judges, using British laws. No wonder Ken Clarke previously called Cameron’s desire to create a British Bill of Rights as “xenophobic and legal nonsense”.

Those who simply champion withdrawal from the European Convention on Human Rights underestimate the interrelated nature of the convention, the court, the Council of Europe and, ultimately, membership of the European Union. Thus total withdrawal from the European Convention- as is favoured by many on the Tory backbenches – would represent a truly seismic shift in our international obligations.

The European Convention has become a lightning conductor for the angst of the Eurosceptics, many of whom might well sympathise with total withdrawal of the UK from existing pan-European structures. As it happens, the terms of reference for the Bill of Rights Commission reaffirms that our membership of the convention will remain intact. As a result, those Tory backbenchers seeking reassurance from Cameron on our European human rights obligations are bound to be disappointed.

I find political opposition to the 1998 Human Rights Act puzzling. After all, the legislation is designed to protect the individual against the might of the state. It empowers the little people against the untrammelled power of central and local government. This smacks me as something that politicians who believe in the importance of individual rights and responsibilities in relation to the state ought to favour.

I do recognise structures established almost half a century ago ought to be periodically reviewed to ensure they are still relevant for today. The European Convention of Human Rights and the associated court should be no different in this respect. But fundamentally human rights are inalienable and while we might quibble with the workings of the Court and the Convention, we cannot pick and choose as we please from the human rights enshrined in the convention. To do so would undermine our moral standing to pass judgement on the human rights abuses in other nations around the world, let alone the other signatories of the Convention.

So I do not envy the work of the Commission, which straddles two polarised political positions on human rights. On paper, it would appear to be a balancing act – broadly, a Tory position that favours repealing and replacing the Human Rights Act, and a Lib Dem stance that has repeal of the Human Rights Act as an anathema.

The fact is the creation of the Commission is simply kicking into the long grass an issue of dispute between the coalition partners. My hope is that the Commission will face down pressure from the political right, and will protect the rights enshrined in Labour’s Human Rights Act. Labour does not oppose in principle a Bill of Rights that goes above and beyond the existing legislation. Anything less and we will oppose with all our strength.

This post originally appeared at the Red Letter blog.