New deal, same fundamentals

Anyone who keeps half an eye on Twitter will not have missed the explosion of comment, in the days since the outcome of the general election became clear, on the Conservatives' commitment to repealing the Human Rights Act and replacing it with a British Bill of Rights, and the obstacles, political and legal, that may stand in their way.

There is a perspective beyond that of the European Convention that I have not yet seen recognised but which, I believe, should certainly not be ignored. Anyone who was present at the 19th Commonwealth Law Conference in Glasgow last month will be aware of the strength of feeling to which the subject of human rights can give rise in a Commonwealth context, as I have described in the lead feature of this month's Journal (and is also covered elsewhere in the magazine). 

I offered some reflections in the main article on what the Commonwealth could do, if so minded, to raise its profile and its voice in the area of human rights and the rule of law. To date, neither the political will nor the organisational leadership has been present to take matters very far forward – though the Charter adopted in 2013 contains clear statements of principle that could certainly serve as the foundation for future action.
An apparent trend was identified in one conference session as giving rise to concern: some courts before whom human rights-related issues have been brought, such as in relation to anti-gay laws, have been deferring to the legislature and saying that any remedy must be legislative – even as the Parliament in question may be increasing the severity of its repressive legislation. Or that the courts are failing properly to apply the proportionality test, identified as one of the cornerstones of human rights protections, and thereby falling prey to public sentiment ahead of protection for the individual.

This is where the current debate in the UK becomes relevant, in that opponents of the Human Rights Act would give Parliament a greater say vis-à-vis the judges on matters of human rights. There appears to be some ambivalence about this, judging by published comments on what the British Bill of Rights might actually contain, but one would have to question why we are embarking on the exercise at all if the object is not to reassert to some extent the supremacy of the UK Parliament.

And that is the cue that will be taken by those whose notions of human rights are already much less all-embracing than our own. Those who were most strident in support of their anti-gay statutes insisted that it was their culture, and that their legislature had to be allowed the final say on the matter. They will surely be quick to point to any move by the UK away from accepting that internationally agreed standards have an intrinsic role to play in the modern world. It is equally likely that similar arguments will be used to support other repressive measures.

It is not only in Europe that the UK is taken as setting an example. If the new Government wishes to avoid setting the wrong example, it must rethink its present course.