A British Bill of Rights is necessary for our freedom and democracy

By Sebastian Gisbert-Madziar

The Human Rights Act 1998, passed under Tony Blair, has enabled the rights enshrined in the European Convention of Human Rights (ECHR) to be directly applied by judges in Britain. For the first time, after our entry into the European Union, it allowed the direct interference of an unfamiliar legal system with our laws across Britain by requiring courts here to ‘have regard’ to any judgment of the European Court when reaching a judgement. Our courts have since monumentally expanded Strasbourg’s power by automatically allowing its application except in cases of ‘fundamental oversight of British legal principles’. Further, it enabled the government to unilaterally change the legislation that was found to be incompatible with the Convention through ‘remedial orders’, something that is notoriously known as ‘Henry VIII clauses’.

 Whereas traditional common law rights evolved to curb the excesses of the executive, the European Convention has uprooted the meaning of what ‘rights’ have traditionally been understood to be in this country. In April 2016, the then Home Secretary, Theresa May, provided the following remedy: ‘A true British Bill of Rights – decided by Parliament and amended by Parliament – would protect not only the rights set out in the convention but could include traditional British rights not protected by the ECHR, such as the right to trial by jury.’

Despite the European Court’s broad attempt at conciliation through the appointment of English legal experts in particular cases, it is inappropriate for our parliamentary democracy to have to answer to a legal system so detached from a democratic process. The implicit permission that Parliament has placed on courts to import foreign legal doctrines has resulted in the dangerous limitations to extradition law, severely limiting the government’s power to deport dangerous criminals.

The central concept of the so-called ‘British Bill of Rights’ would indeed protect the rights set out in the ECHR, which include freedom of speech and conscience, freedom from torture and the right to life. Those rights are obligatory in any liberal democracy. Indeed, the power of government must be restricted against arbitrary tyranny and abuse of power.  The most important idea behind such a Bill of Rights is the respect it would hold for the sovereignty of the Westminster Parliament – which after all is the source of legal sovereignty in the United Kingdom. All institutions would have to abide by the fundamental rights included therein, but the Bill of Rights itself would be amended only by our legislature and by no other international institution.

 For such a conception of ‘rights’ does not have its origin in Continental Europe or the long line of cases churned out by the European Court of Human Rights in Strasbourg, but Britain itself. Indeed, the ancient right to trial by jury was affirmed in the Magna Carta, the first true limitation on the power of the ‘executive’. This document was used to proclaim the power of Parliament over the Crown following the Civil War, which had resulted directly from a violation of the central tenet of the Magna Carta: the assumption that the law is supreme even to Kings, thus, denying the ‘divine right of Kings’ that later resulted in the downfall of Charles I. What followed was the model of parliamentary democracy that we cherish today. Any departure from such a situation dangerously limits the delicate balance that has held this country together for over 300 years.

 When the ECHR was incorporated into UK law through the Human Rights Act, an unprecedented erosion of the idea of British fundamental rights and freedoms through Parliament itself occurred, not to mention courts here expanded the jurisdiction of the European Court beyond what was required of them by Parliament. The ancient and immutable balance between Crown and Parliament has been severely eroded by an institution that values its own supremacy to democracy in individual countries of the Council of Europe. It is the duty of the United Kingdom to repair the balance by repealing the Human Rights Act, and replacing it with a British Bill of Rights that would free British institutions from total domination by a legal order fundamentally detached from the British understanding of human rights. For if Britain is not free, nor can our citizens be and ensuring the freedom of our country from an unaccountable foreign court surely must be paramount. Indeed, the opportunities given by our upcoming departure from the European Union supply us an opportune chance to repair our Constitution once and for all.