It has been noted by several observers that the Government’s proposals for a British Bill of Rights have been subject to a gentle kicking into the long grass. In May 2015 it briefings seemed to indicate that proposals would be published in the Autumn. However, Autumn came and went and there are still few details about when we can expect the Bill of Rights Proposals.
In the course of the Brexit debate over the last week or so a very interesting detail about the forthcoming Bill of Rights debate emerged. The Justice Secretary, speaking before the House of Commons Constitution Committee that the ECHR was admirable and expressed a desire to stay a state party to the ECHR even if Britain voted to leave the EU. The Home Secretary’s speech on Monday in support of the Remain campaign suggested that staying in the EU still left open the possibility of leaving the ECHR (David Allen Green details the saga here). The Justice Secretary’s position has clear legal precedent – 19 state parties to the ECHR are not members of the EU, although the Home Secretary’s position is much more dubious given the status of Article 49 of the Treaty of the European Union (TEU). This rule only applies to new member states but the requirement for member states to respect human rights and for the EU to take action against states that violate human rights is contained in other provisions in the TEU.
The problem comes when a choice has to be made about what the shape of a British Bill of Rights looks like. It is no secret that the current Home Secretary was deeply embarrassed by the political fall out stemming from the Oothman judgment and her failure to secure Abu Qatada’s deportation. One of the driving forces behind the campaign to repeal the HRA were the high profile cases where deportation was blocked under either Article 3 (torture) or Article 8 (Family life) grounds. What data there is about attitudes towards the ECHR and the HRA shows that the public at large are often quite hostile to individuals using the ECHR to resist deportation. Therefore it is difficult to believe that in a post-Brexit world that a British Bill of Rights which retained membership of the EHCR, and hence the legal obligation under Article 3, would be palatable. Given that extremist positions about sovereignty in relation to supranational institutions are the raison d’être of the Brexit cause why would continued membership of the ECtHR be tolerated? Equally if the Remain campaign were to win, regardless of any legal argument, an attempt to withdraw from ECHR would be fiercely opposed by other states and EU institutions who would be inclined to defend existing structures confident in the knowledge that broader political threats of Brexit were unlikely to materialise.
Whilst the above is at this stage still crystal ball gazing it is intended to highlight how the Bill of Rights debate will almost certainly be the prisoner of wider political forces. Also as it will take place after the EU referendum there will be strong incentives for the winning and losing sides to refight many of the same arguments over the ECHR in the Bill of Rights (although the battle lines may become more blurred at the cabinet level).