The Times/Matrix Bill of Rights Debate - 20 April 2010

"Should the Human Rights Act be scrapped and replaced by a British Bill of Rights?"

The debate, organised by The Times in conjunction with Matrix Chambers, took place in Gray's Inn Hall on Tuesday 20 April 2010. (Photos Chris Harris/The Times)

Speaking for the motion were The Rt Hon David Davis, Martin Howe QC and Andy Hayman. David Davis made a powerful opening speech explaining how the Human Rights Act has failed to protect our liberties when required and has undermined the role of Parliament in doing so. The motion was opposed by Cherie Booth QC, Rabinder Singh QC and Shami Chakrabarti.

Speech by Martin Howe QC

Many criticisms can be made - and have been made - of the Human Rights Act. But tonight I'd like to make the positive case for what a new Bill of Rights for the United Kingdom can achieve.

The principles enshrined in the European Convention of Human Rights rightly enjoy near universal support. A British Bill of Rights would continue to protect those principles.

The supporters of the Human Rights Act claim that this can only be achieved by the particular mechanism used in that Act. That mechanism is the direct incorporation of the text of the Convention into United Kingdom domestic law. According to this over-simplistic and fallacious view of the world, a British Bill of Rights either says the same thing as the Convention, in which case it is unnecessary; or it says something different, in which case it is pernicious.

But nothing could be further from the case. A British Bill of Rights can achieve six very important things.

First, greater clarity and precision in the law. The Convention was drafted as a diplomatic text to be observed by States. It was not drafted as a statute suitable for daily application in our domestic courts or daily observance by our public authorities. Its broadly and vaguely worded Articles leave much room for misinterpretation, particularly when it has to be applied day to day, on the ground. Supporters of the Act cannot disclaim, for example, the actions of police who wrongly advise shopkeepers that they cannot put up "wanted" pictures of shoplifters because it would infringe their human rights.

A law must be tested by how it operates in practice - not in a theoretical make-believe world where everyone is perfect and has the skills of a top class human rights lawyer able to interpret and apply the Convention without any difficulty.

A Bill of Rights would define more clearly the rights enshrined in the Convention and the limitations of those rights. It would dovetail those rights into our legal system and our laws. By making the law clearer and more specific, it would enhance the effective protection of our rights in circumstances where they deserve to be protected and make it more obvious where specious and unjustified claims are being put forward.

Secondly, a British Bill of Rights can provide specific protection for rights and liberties which are not covered at all by the Convention, or which are inadequately covered. For example, it can protect the right to trial by jury in serious criminal cases from further erosion for reasons of administrative convenience.

The European Convention was drafted 60 years ago. Since then, new technology has led to new dangers against which the citizen today needs to have specific protection. There has been a huge and unparalleled growth in the Database State. This can at least be tempered by giving citizens rights over the way in which their personal information is gathered, stored, shared and disseminated by the organs of the State.

Thirdly, a British Bill of Rights can correct some of the imbalances between different rights which have grown up under the Human Rights Act - within the margin of appreciation permitted to States under the Convention. One unintended consequence of the Act has been the creation by the Courts of a full scale law of privacy, under the guise of giving effect to the right to respect for private and family life under Article 8 of the Convention.

This judge-made law of privacy is a model of what a privacy law should not be. It is vague, unclear and discretionary. The Press is hampered by not knowing what it can and cannot do. In practice this law is available mainly for the benefit of rich and powerful people. It may be used for the suppression of inconvenient and embarrassing truths as much as for the protection of genuinely private matters.

Article 10 of the Convention on "freedom of expression" is much weaker in the protection it provides than, for example, the First Amendment to the US Constitution. A British Bill of Rights gives the opportunity to strengthen the freedom of the Press in this country and to give the media clear rights to report matters in the public interest.

Fourth, a British Bill of Rights would re-connect our citizens and our courts with our own deeply embedded historical traditions in the protection of liberty. The liberties now set out in the European Convention are not a foreign import into this country from Europe. The fundamental right to a fair trial stems under our law from Magna Carta, and the independence of our judiciary from the Act of Settlement; Article 6 of the Convention came a lot later. Our right to liberty of the person stems from the Habeus Corpus Act which long pre-dated Article 5.

In interpreting and applying the Bill of Rights, our courts would be able to draw more extensively on the case law of other common law countries. Instead, at present, they are increasingly confined to looking at cases under the European Convention itself.

Fifth, the Bill of Rights would give our courts greater freedom and confidence where appropriate to challenge some of the more questionable jurisprudence of the Court of Human Rights in Strasbourg. In his address last year to the Judicial Studies Board, Lord Hoffmann powerfully criticised some of the rulings of that Court and its general approach. But our higher courts have on the whole been unduly craven in their approach to the Strasbourg case law, acting almost as if Strasbourg is a harmonising court by whose rulings they are bound like the EU Court of Justice at Luxembourg.

And sixthly and lastly, and probably most importantly, a Bill of Rights for the United Kingdom will re-engage our legislators directly with the process of safeguarding the rights and liberties which it protects. Like it or not, the Human Rights Act is unloved by the British public and is viewed by politicians as an instrument which seeks to impose external restraints on the freedom of action of Parliament.

The Bill of Rights of 1689 (and in Scotland the parallel Claim of Right) were instruments by which Parliament imposed its will on the executive in order to protect and enhance our liberties. The new Bill of Rights for the United Kingdom should be seen in a similar light and as serving a similar purpose. It will provide guidance for Parliament itself in the laws it passes, and unlike the Bill of Rights of 1689 it will be protected against unintentional or casual repeal; it will prevent incompatible statutory instruments or executive actions which conflict with its provisions; and if laws are found unintentionally to be contrary to its terms then Parliament itself will be intimately involved in addressing the problem - unlike the Human Rights Act where a quickie statutory instrument by-passes Parliament.

A new Bill of Rights can strengthen the protection of our vital liberties; reduce the scope for absurd and inappropriate claims; speed up our courts; reduce muddle and confusion on the part of public authorities, police and others who have to apply it; reduce friction between politicians and the judiciary; and return law-making to our elected representatives in Parliament rather than the courts.

The Times's report of the debate by Frances Gibb in on the Times Online. (Please note that this direct link to the article does not always work and it may be necessary to go the Times Online business news home page and search for the article from there.)