Some legal experts believe the non-appearance of the Bill of Rights consultation is sign of the inability of officials and Ministers to work out how to achieve their professed policy aims. Others are calling time on the Tories ‘attack on human rights’, suggesting both that the policy aims are now incredibly modest while the price of pursuing them, especially in the context of a ever more federalised UK, too high.
Personally I believe the decision on timing – and content – of the consultation is a matter solely of political strategy related to one issue and one issue only: the referendum on the UK’s membership of the European Union. The question that political strategists in Number 10 will be asking is how can the content and launch of this consultation exact optimum impact in relation to ensuring the UK remains in the EU and/or conversely how can anything that might detract from that goal be avoided?
A major clue to this was the somewhat surprising shift in focus early in the new year from the European Convention and Court of Human Rights to the Charter of Fundamental Rights of the European Union and the European Court of Justice. A Bill of Rights would now, we were told, restore UK sovereignty by clarifying the non-applicability of the Charter to domestic UK law.
As with Cameron’s current negotiations in Brussels, it is clearly hoped that by being seen to wrest powers back from ‘Europe’ that the Prime Minister can persuade the voting public that we are better off in a reformed European Union than outside of it. Given most of the media and no doubt large swathes of the public draw no distinction between the institutions of the European Union and those of the Council of Europe, anything that is seen to be giving two fingers to Europe might be deemed beneficial. In this context, simply promising a Bill of Rights that professes to stop Europe from telling us that we can’t deport terrorists, that we must give our prisoners the right to vote or that we can’t decide who comes in and out of our country and so on all forms part of the ‘retail offer’ designed to win over sceptical voters to the ‘stay’ campaign. As with Chris Grayling’s paper of October 2014, it matters little how ‘legally literate’ such proposals are, because legal accuracy really matters not one jot. What matters is political advantage in relation to communicating a policy objective which the proposals themselves have little or any bearing.
But I also find this logic curious as a matter of political strategy. Surely lobbing proposals into the public realm ahead of the EU referendum that have the power to reenforce or potentially even drive people towards Euroscepticism by reminding them of all the awful things that Europe allegedly forces us to do risks being an entirely avoidable own goal? This could explain why Gove appears to be playing the proposals down, offering vague promises that the consultation will appear ‘soon.’ Perhaps recent focus groups have suggested that all this talk of European human rights judges makes them more likely to vote leave than stay?
Hence there seems a possibility that we may only see proposals regarding a Bill of Rights before the referendum if (a) Cameron’s current negotiations on EU reform fail to deliver a shift in political support and voter intention sufficient to offer confidence of a majority vote to ‘stay’ in June and (b) polling suggests that publishing proposals will help win some much needed support and/or (c) the consultation would not hand votes to the leave campaign.
If this is the calculation – and I’d bet it is – then a further question emerges: if the consultation doesn’t appear before the referendum, what will happen after the referendum? Will they appear at all, or die a death as Ian Dunt – prematurely in my view – has predicted?
If the UK stays in the EU, then what would it offer to the legacy of an outgoing Prime Minister having not only kept the Union together but kept the UK in the European Union to start an avoidable battle pitched against both? If Britain leaves, then it seems likely Cameron would be forced to step down earlier than planned and the future of the UK’s human rights laws will be in the hands of Prime Minister Johnson, Osborne, Gove or an as yet unknown quantity. Would Euroscepticism have been satiated sufficient to leave the HRA and the ECHR alone?
As for the likely proposals themselves – insofar as we have read about them – I would caution against regarding them as modest simply because they no longer include withdrawing from the ECHR. As a package, and in the context of wider reforms, they potentially mark further erosion of judicial power, executive accountability and the scope of rights protection. By playing them down as modest or by framing it as largely technocratic (as was the strategy over judicial review for example) their constitutional significance and their impact for people’s everyday lives risks being overlooked.
Whatever the outcome though, it seems that, for now at least, the fortunes of the Human Rights Act rest almost entirely with the political strategists hoping to keep the UK in the European Union.
UPDATE 8 February 2016
Reports over the weekend suggest that a measure to ‘restore Parliamentary Sovereignty’ is a deal-sealer in winning the support of Boris Johnson to back the ‘stay’ campaign. While this focuses on supremacy of the Supreme Court over the European Court of Justice rather than the European Court of Human Rights, it seems likely, given the Justice Secretary attributed the delay in the Bill of Rights consultation to the Prime Minister’s ask that this idea be included, that it will be included in the overall Bill of Rights ‘package’. Moreover, it now seems probable that we could see this in a matter of days rather than months, and before the close of the current negotiations, in order to appease Boris. However, Tim Shipman of the Sunday Times yesterday tweeted that:
‘Dave’s “rabbit” on parliamentary sovereignty not impressing Gove or Boris. “Rabbit will be dead on arrival”‘
Others have pointed out the irony of legislating to hand power to the courts to determine matters of Parliamentary Sovereignty, but as I say above, legal literacy is not the name of the game here.