Post-Brexit Britain needs an ambitious Bill of Rights rooted in integrity and purpose

By: Joanna George

When I was commissioned by The Constitution Society in July 2022 to write a report on the UK Government’s proposed ‘Modern’ Bill of Rights Bill, I would not have anticipated that by January 2023 the Bill would have been shelved under a new Prime Minister (Liz Truss) then return under a different (and still new-ish) Prime Minister, Rishi Sunak, then left to linger on the parliamentary agenda for an indefinite period of time. If one week was a long time in politics for Harold Wilson in the 1960’s, then six months is an entire lifetime in British politics for those of us living in the 2020’s. As for human rights, the UK Government’s rhetoric, actions, and legislative activity over the last six months is a cause for significant concern, not just to vulnerable groups such as asylum seekers, but to everyone residing in the UK. 

My report aims to interrogate how ‘Modern’ (the Government’s chosen word for its consultation on Human Rights Act reform) the Government’s Bill of Rights Bill actually is through the interconnected constitutional themes of the rule of law, standards in public life and devolution, each of which have been undermined by the current Government. By examining the Bill through a constitutionally holistic lens, it seeks to highlight the unworkability of the Bill in its current form, questions the motives behind the Bill’s creation and proposes what a ‘Modern’ Bill ought to include to meet the uniquely ‘British’ constitutional challenges currently existent and that are likely to arise in future. I argue that conscientious constitutionalism in the political decision-making process is an intentional practice worth pursuing, as without it the point and purpose of politics itself becomes weak and directionless. It ultimately concludes that instead of ‘restoring a healthy dose of common sense to the justice system’, the Bill would do the precise opposite by creating unnecessary constitutional contradictions and confusion at a time when constitutional coherence is required post-Brexit. The report also emphasises that as a Government which prides itself on supposedly getting Brexit ‘done’, it has failed to take advantage of the legislative, political and social opportunities of making a new Bill of Rights a landmark piece of post-Brexit legislation which fosters a sense of UK identity, belonging and community – one of the most pressing concerns of Brexit voters in the 2016 referendum. 

As explored in Chapter 1, it is striking how little the Bill has progressed from 2015 when Dominic Raab as Human Rights Minister contributed towards an unpublished consultation paper on replacing the Human Rights Act with a British Bill of Rights. This suggests that the Bill is essentially stuck in a 2015 pre-Brexit time-warp, when the Conservative Party was dithering on whether it was the EU they wanted to leave or the distinct European Court of Human Rights (ECtHR). If Brexit divided the Conservative Party, then the European Convention on Human Rights (ECHR) could break it up even further, particularly given its implications for migration and asylum issues. If enacted, the Bill of Rights would likely see more cases going to the ECtHR and result in more adverse judgments against the UK. This was recently highlighted in a new report by the Joint Committee on Human Rights, which has called on the Government not to advance the Bill’s passage through Parliament. 

The role of the right-wing tabloid media and their role in influencing Conservative Party sentiment on the ECtHR is also analysed, suggesting that as the fourth pillar of democracy, it is their duty to help and not hinder British democracy. This is a point shared with Martin Wolf who recently acknowledged that ‘We must also have a media that supports democracy rather than undermines it’. The ethos of prioritising short-term media ‘clicks’ over crafting a workable Bill which helps those dealing with sensitive topics and human rights concerns undermines the ‘human’ in human rights law and fails to measure the intrinsic legal and social value such law has.

As recognised by the president of the European Court of Human Rights, Siofra O’Leary, the UK continues to have the best human rights record in Europe. The Government’s very own consultation paper confirmed a positive response to the role of the ECtHR. As such, the Government’s decision to attempt to sidestep the authority of the ECtHR in the Bill can be seen as an awkward constitutional square dance; one that the Government commences on its own and is obsessed with, but which in reality, its audience has no interest in engaging with or watching the performance of.

Chapter two explores the human rights landscape across the UK, how the Scottish and Welsh governments are proactively seeking to legislate to protect and enhance socioeconomic rights and why the Bill is a fundamentally anti-Unionist piece of legislation. Protecting and enhancing human rights is a core value within the political and constitutional cultures of the devolved administrations. However, unlike the devolved nations and parts, the ECHR is not protected in England. This means that England has a human rights deficit. As observed by the Independent Human Rights Act Review panel, there is a more positive public perception of the Human Rights Act in Northern Ireland, Scotland, and Wales ‘than was apparent in England’. Such evidence points to a deficiency in human rights advocacy in England and highlights the need for more active interest and understanding of this issue from an English perspective if it is to be valued to the same extent as in the rest of the UK. 

Alarmingly, the House of Commons Public Administration and Constitutional Affairs Committee recently warned that people in England ‘do not feel political and social change is possible, and in particular they feel that their participation in the political process is unlikely to bring about change’. This feeling is not aided by a UK Government that seeks to reform UK human rights law through negative and disempowering sentiment, taking away rights, rather than granting them, or at least maintaining the status quo. Whilst the cost-of-living crisis and public sector strikes impact the UK as a whole, the devolved governments provide additional attention to the root cause of these problems, whereas England is completely reliant on the UK Government  English discontent could therefore be  resolved if the UK Government looked and learned from the devolved governments who are leading the way forward on ‘Modern’ human rights developments in the UK.  

Chapter three focuses on the UK’s bigger constitutional picture, touching on the decline of standards in public life and the international implications of the Bill. It also puts forward an agenda for what is needed in a ‘Modern’ Bill of Rights. As highlighted in my previous blog for the Society, it is interesting to observe that the Bill lacks the word ‘British’ in its title considering that this has been a notable feature of proposed legislation in the past. Being ‘Modern’ and ‘British’ is not mutually exclusive; it is necessary that it is both, in both language and substance. Whilst the Bill maintains the same catalogue of ECHR rights as the Human Rights Act (through attempts to weaken them) it adds no additional new rights; rather, it tries to emphasise ‘quintessentially’ British rights, although it fails to do even that.

A ‘Modern’ British Bill of Rights should therefore be drafted with unity, clarity, dignity, and conviction at the core of its purpose. It should reflect a time when ‘Modern’ human rights concerns, such as restrictions in accessing justice, urgently need addressing. The current Bill instead not only reflects a deficiency of imagination, but it also highlights the significant gap between the political priorities of the Government and the reality of the human rights needs of the population at large. Issues such as the right to health, housing, education and technology are pressing concerns for many, yet it is the opposition parties, and not the Government, advocating for them. The fact that these pressing issues haven’t been contemplated within the current Bill speaks of a lack of imagination and leadership on the serious human rights challenges of today. It also puts into focus who is putting themselves forward for political office and why they are chosen to operate at the highest levels of Government. To create and maintain a political environment in which human rights are respected and cherished requires people with integrity and strength of character to come forward and to defend these long-fought for rights. As noted by Helena Kennedy KC, ‘Law translates standards of human rights into reality’. The ‘reality’ of the Bill of Rights Bill is that it would cause more problems than it seeks to solve, and that to progress with it further would cause obstacles to democracy at large. That the Government will acknowledge or admit this seems unlikely, but for the sake of the survival of the Conservative Party itself it would be wise to drop the Bill and focus on providinglegal solutions, not causing them. 

Joanna George is a research fellow at The Constitution Society. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.