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The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.
The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.

Bruges Group Blog

Spearheading the intellectual battle against the EU. And for new thinking in international affairs.

The Bill of Rights: No panacea, but a step in the right direction for Parliamentary sovereignty


On reading the reactions to the new Bill of Rights Bill, introduced to the House by the Lord Chancellor, I am reminded of an episode of the BBC anthology series, Screen Two: "The Law Lord". In it, Anthony Andrews plays Lord Edwardes, the Lord Chancellor, contending with an ambitious Home Secretary seeking to bring the legal establishment to heel and enact his agenda via the courts, not the legislature.

So, whenever there are claims this Bill is some dastardly plan to take away rights, undermine democracy, or the rule of law, I am reminded of this fictitious scandal and remember that this would be what it looks like.

It is clear that the Government have the European Court of Human Rights in their sights. The Bill instructs that "no account is to be taken of any interim measure issued by the European Court of Human Rights" - including in the case of deportations of foreign national offenders and likely, the Rwanda policy. The halting of the deportations to Rwanda by an emergency decision of the European Court of Human Rights (ECtHR) meant that a policy enacted by the elected government and solidified by an international agreement could not go ahead: that is not the case anymore. Now, with the decision to reaffirm the Supreme Court's position as the interpreter of Convention rights.

The Bill, moreover, insists that greater weight be given to Parliament on balancing delicate human rights issues, meaning that the decisions of Parliament are to be emphasised and read in good faith.

There's more: it doesn't permit pre-commencement interpretations of Convention rights to hamper the work of public services. I disagree with view of Labour Peer and QC, Baroness (Helena) Kennedy QC, who criticised the Bill in the FT as '[marooning] society in a romance with the past', but instead taking into account an era of greater legal activism and politicised causes using the courts and the ECtHR – not the elected Parliament – to affect the law and succeed in their agenda.

This does not mean judicial independence is curtailed either - interpretations can continue to be made and past interpretations by both British and Strasbourg courts will still stand; This section just means that the democratically-elected government's day-to-day operations cannot be hampered by past interpretations. This is especially important in 5(2)(e), in relation to matter of "primary legislation relating to supply and appropriation", where governments require funds to continue running themselves.

For those who are keener to argue the Bill of Rights Bill threatens the European Convention of Human Rights the UK originally signed up to, they will also find the ECHR is instead bolstered. Particularly in the area of freedom of speech, where the courts have been instructed to "give great weight to the importance of protecting the right". However, Professor Gavin Phillipson of the University of Bristol criticised the Bill for not doing enough to protect free speech, writing on Twitter that in the Bill, free speech had 'special importance', but "not against the govt when it's trying to prosecute, deport, strip your citizenship or injunct you for publishing confidential information". In his opinion, one could say there were too many caveats for freedom of speech to be consistently defended; there should've been a stronger case made for freedom of speech whether it was for or against the government.

The limits on the power of courts to allow appeals against deportation in Section 20 is another section designed to address expansive ECHR interpretations that seek to undermine Home Office policy. It is not a 'power grab' as some may allege, and neither is it inhumane. In fact, the bill bolsters and reaffirms the right to a fair trial as its bedrock.

In strengthening the ability of the government to enact its policies and putting the view of Parliament front and centre, the Bill of Rights doesn't undermine human rights and neither is it a Tory power grab. While much more can be done to review the European Convention of Human Rights and revise the ECHR in a way in which it retains its original essence of protecting individual rights and freedoms, the Bill of Rights Bill does much to curb expansive interpretations of the ECHR and the ability of the Strasbourg Court to be used as a back channel to undermine government policy; especially when British Courts contend there is no issue with said policy. Freedom of speech, however, deserves a stronger stand, and should have a stronger advocate at the head of the next government.

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