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But for all its defects and in spite of any enactment of a British Bill, the European Convention must remain, as a rare long stop appeal from Supreme Court decisions. Withdrawal from the Council of Europe is hardly an option: it would not only diminish the UK’s political and diplomatic clout in an organisation of 47 countries which usually abide by court rulings (even Russia, reluctantly, pays the damages it orders) but could lead to an exodus: the Council of Europe and its Venice Commission have been vital to stability and the rule of at least some law in Eastern Europe. And abolition of the Human Rights Act will be impossible unless the significant number of Tory MPs currently opposed to its repeal are satisfied that any British Bill that replaces it provides for all the rights that it already guarantees. Moreover, the Human Rights Act, which incorporates the Convention in UK law, underpins the Good Friday Agreement and the devolution settlements, so there will be further stakeholders to satisfy that the British replacement is fit for purpose.  They cannot begin to be satisfied until the government vouchsafes them — and the rest of the nation — a sight of its proposed “British Bill”.

The only recent model was that drawn up seven years ago by the Joint Parliamentary Committee on Human Rights. It had a simple if uninspiring preamble: “This Bill of Rights and Freedoms is adopted to give lasting effect to the values which the people of the UK consider to be fundamental” i.e. the rule of law, liberty, democracy, fairness and civic duty. There followed several pages of incomprehensible legal procedure and then a list of bullet points incorporating by reference the European Convention rights.

Then — new to British law — it articulates some social and economic rights (to health, care, education, housing, and a sustainable environment) which are “only justiciable to the extent they are relevant to the interpretation of legislation or the assessment of the reasonableness of the measures taken to achieve their progressive realisation”. This is an interesting way of extending some protection to post-1953 educational and social rights. However it does underline the fact that drafting a “British” Bill cannot be done, as its advocates appear to think, on a wet Sunday afternoon. Its draft will have to win substantial cross-party support, perhaps after debate at a constitutional convention, and that necessary cause of “ownership” would be achieved by endorsement at a referendum.

And so to proof of the pudding: an actual example of a “British” Bill of Rights. That is not the name I would choose to call it: too insular, and too redolent of the current sterile debate about “British” and “European” rights. “The Statute of Liberty” would be a better title, remembering how The Petition of Right described Magna Carta as “the great charter of the Liberties of England”.

Then comes the all-important preamble. It must be short but inspiring, not over-triumphalist, and teachable to teenagers. It must conjure up in its language the achievements that its subsequent rules reflect. This is not a task for lawyers, but for historians and poets and people of some imagination and literary ability, whom Mr Gove should recruit immediately. Then come the rights themselves, which should include all those in the European Convention, sometimes expressed in the language that has been used in our own historic documents (this will require judges to learn a little history in order to interpret them, which would be no bad thing).

We should take the opportunity to restate the rights that the European Convention has diminished (notably the “open justice” principle), to eliminate its weasel words (and a nasty little racist clause — 16 — that could allow governments to deny free speech to “aliens”) and to add rights that we now accept as a matter of international law — such as the rights of the disabled and the general principle of non-discrimination.

 And no British version of Liberty would be complete without some contribution from Shakespeare — the European Convention entirely overlooks the most basic humanitarian principle, that mercy must season justice.

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graceirronwood
July 16th, 2015
8:07 AM
Ummm, SOVEREIGNTY, Geoffrey?

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