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'Highly problematic, to put it mildly'

9 October 2014

Deciphering the Conservative Party’s proposals for a new ‘British Bill of Rights’ is not an easy task, as the eight-page policy document is riddled with errors, distortions and imprecise language. What is more, their two main policy aims are highly problematic, argues Colm O'Cinneide.

The Conservative Party’s proposals for a new ‘British Bill of Rights’ have been unleashed – they can be read in detail here. The right-wing press have reacted with delight: the left-wing press with disdain, along with many legal commentators. The former Attorney General, Dominic Grieve MP, has described the proposals as ‘almost puerile’.

Deciphering the detail of these proposals is difficult. The eight-page policy document prepared by the Conservatives, ‘Protecting Human Rights in the UK’, is riddled with silly errors, distortions and imprecise language. For example, it implies that the Human Rights Act 1998 (the HRA) made judgments of the European Court of Human Rights ‘binding over the UK Supreme Court’ and enabled the Strasbourg Court to ‘order a change in UK law’. This is legal gibberish: the HRA does not make ECHR judgments binding upon the sovereign Westminster Parliament, or indeed the UK Supreme Court which decides for itself whether to follow Strasbourg case-law.

However, wading through the gobbledygook, it appears as if the Conservatives are trying to achieve two policy aims through their proposed new Bill of Rights. Firstly, they wish to minimise the impact of ECHR judgments on UK law, and to reduce the status of the Strasbourg Court to a purely ‘advisory’ role. Secondly, they wish to carve out exceptions to the system of rights protection established by the ECHR and HRA, which will greatly limit the rights of terrorist suspects, Travellers and other ‘undesirables’.

Both of these policy aims are highly problematic, to put it mildly. Minimising the influence of Strasbourg will cut UK law off from a rich seam of jurisprudence that has enriched Britain’s rather thin common law tradition of rights protection. By undermining the Strasbourg Court, it will also inflict potentially irreparable damage on the world’s most effective system of international human rights protection. Furthermore, by limiting rights protection to reflect a compendium of popular prejudice, the proposed ‘Bill of Rights’ will provide demagogues and tin-pot dictators the world over with a handy, British-approved model of how to deprive human rights law of any meaningful content.