So, as Tim Shipman suggested at the time, the ‘sovereignty rabbit’ that David Cameron planned to pull out of the hat to win over Boris Johnson to the ‘stay’ side of the EU debate was ‘dead on arrival’. Appearing on Andrew Marr yesterday morning Johnson said that the workable (have your cake and eat it) plan he was prepared to sign up to was killed dead by government lawyers. Number 10 is still suggesting that proposals to restore or safeguard UK sovereignty will be published before the referendum, with Oliver Letwin in the driving seat, but they have lost their primary political utility: buying Boris.
So what does all this mean for the ‘British Bill of Rights’? In late 2015 Justice Secretary Michael Gove advised Parliamentarians that publication of the proposals were delayed because the Prime Ministers had asked that they include proposals concerning the supremacy of the Supreme Court over the European Court of Justice i.e. the Boris clause. Do the two continue to be intertwined? And if so, can we expect the British Bill of Rights proposals alongside those for UK sovereignty before the referendum?
I think we can be almost 99.9% certain that the answer is ‘absolutely no way’. Michael Gove would be in charge of any such consultation, along with his fellow avid ‘outer’ Justice Minister Dominic Raab MP. While Cabinet Ministers have been permitted to declare their personal position and to campaign for it, Number 10 is going to great lengths to weaken Ministers opposed to official government policy, for example by blocking their access to official papers and intelligence on EU matters. Number 10 is not going to give Gove and Raab – two highly effective political operators and communicators – an official platform from which to launch damaging attacks on ‘Europe’ (even if it’s a different Europe to the one in contention). Proposals for a British Bill of Rights will not then – in my estimation – appear before 23 June.
So what future for a British Bill of Rights? If the UK votes to leave the EU, Cameron will presumably resign, there will be a leadership election and possibly a General Election (assuming Parliament can change the Fixed Term Parliament Act 2011). It would therefore become a question of the next Conservative Party manifesto and the outcome of that election. If Britain votes to stay, I think it’s possible Cameron will step down early, followed by a leadership election and possibly an early General Election, with the same conditions applying. I certainly cannot imagine Cameron – having secured both the Union and the UK’s place in Europe – wanting to open up new battle-lines with both in pursuit of repealing the Human Rights Act. Then again, it is said that repeal is a deeply personal matter for Cameron so he may wish for it to be part of his legacy.
Ultimately though I feel the greater political utility to the Conservative Party lies in threatening to repeal the Human Rights Act than in actually striving to deliver on that threat. As with Cameron’s sovereignty proposals, the reality will naturally deliver short of the rhetoric. Moreover, the threat is deeply damaging in its own right, creating a chill effect that damages rights protection without ever having to change the law itself (and not only in the UK but globally).
NGOs that would ordinarily embrace human rights (and which do in say Northern Ireland) won’t even utter the words for fear of being either singled out or infected by the toxicity of public and political discourse. It has been suggested that the judiciary, domestically and at the European Court of Human Rights has become more conservative in response to accusations of judicial activism. Stories which scream ‘human rights abuse’ such as the unexplained deaths of people with learning disabilities in NHS hospitals are reported in the media without any reference to human rights at all, while in any story concerning the frustrated deportation of a foreign criminal the words ‘Human Rights Act’ will be up in lights.
The reality is that the threat to repeal the Human Rights Act is helping to erode our human rights protection by stealth. It is part of a wider trend that is weakening our power as citizens to hold government to account, either through the Courts, via Parliament, the media or through organisations of civil society that represent us or advocate on our behalf.
This is why, even if the threat of law reform has once again gone on the back burner, the need to assert our human rights and to go about transforming the public narrative has never been greater.