Raphael Hogarth

It’s time to drop the British Bill of Rights for good

It's time to drop the British Bill of Rights for good
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The Government plans to scrap plans to scrap plans to scrap the Human Rights Act. Here we go again. Following snugly in the footsteps of her two predecessors as Lord Chancellor, Liz Truss has promised to implement the so-called 'British Bill of Rights' in its place. There were never good reasons for this policy, but at one stage there were at least some bad reasons. Now, even they have run out.

The European Convention on Human Rights affirms the rights to life, a fair trial and freedom of expression, among others. Until 1998, a Brit who thought their human rights had been violated needed to exhaust all their legal options at home before fighting to take the case to the European Court of Human Rights. On average, that took five years and cost £30,000. If the applicant won in Strasbourg, the British Government was bound by international law to rectify its violation. Strasbourg’s rulings could not, however, change UK law.

Tony Blair thought the system dysfunctional. So his government passed a Human Rights Act which incorporated convention rights into UK law. That meant Brits could defend their rights in our own courts; giving them better access to justice and allowing British judges to take the reins in shaping human rights precedent. This was as sensible as it sounds. So why has the Conservative party invested so much time and energy in working up a repeal?

In truth, it has been politically profitable to malign the HRA for those pandering to the Conservative right. Once upon a time, during the EU renegotiation, David Cameron was desperately trying to convince people he might opt for 'Leave' if he didn’t get the deal he was after. How handy, then, to be openly disparaging the European Convention on Something or Other. Granted, it had next to nothing to do with the European Union. But it was European and he was against it. The British Bill of Something or Other was British, however, and he was for that.

Now, it's Theresa May’s turn. When she came to position herself for the leadership during the referendum campaign, she knew that she could score big with a quick kick of this political football. Five minutes into an otherwise unspectacular 'Remain' speech with little bait for journalists, she slipped in three juicy paragraphs about leaving the ECHR. To suit the rhetoric of the referendum, toughness on terrorists and hate preachers was recast as toughness on dangerous 'foreign nationals'. The language of sovereignty was invoked too: 'the ECHR can bind the hands of Parliament,' she said. (It can’t.) Slam dunk: the Sun headline the next morning said nothing about her position on the EU, leading with the ECHR material. The Mirror mentioned both. Everyone was happy.

So now, another news cycle means another round of posturing over a British Bill of Rights. This time, however, there is scarcely a policy left to posture with. Instead, the Government is left trying to craft a policy that lives up to all this lofty rhetoric but barely changes anything. Michael Gove explained in February that there were no plans to ditch any of the rights in the ECHR. After all, that would just return us to the dysfunction of the pre-1998 system. He wanted only to 'firm up' freedom of speech and clarify that British judges are not bound by Strasbourg. The committee said his evidence 'left us unsure why a British Bill of Rights was really necessary'.

Good point. The policy’s old political purposes are dying. Brexit means Brexit, not ECHRexit, meaning Theresa May has no need to burnish her Eurosceptic credentials now. Liz Truss’s own stated rationale about this being a 'manifesto commitment', is the flimsiest yet. Time to scrap plans to scrap plans to scrap plans to scrap the Human Rights Act.