09 April 2013

Human Rights Squibs

'A Damp Squib in the Long Grass: The Report of the Commission on a Bill of Rights' by Mark Elliott in (2013) European Human Rights Law Review - a sprightly rather than damp article - comments [PDF] that
 In December 2012, the Commission on a Bill of Rights, established by the UK Government, issued its final report. The Report advances very limited, inchoate proposals for a UK Bill of Rights that are essentially superficial in nature. The Report fails to grapple with the fundamental questions that would naturally fall to be confronted as part of a serious debate about the future direction of human rights protection in the UK. The failure of the majority clearly to articulate what it understands a Bill of Rights to be renders vacuous its recommendation that such legislation be adopted in due course. While the proposals contained in the Report are highly unlikely to be implemented in the foreseeable future, the shortcomings of the Report - and of the process that yielded it - contain important lessons for how future debates of this nature ought to be conducted. … 
Articles do not normally begin by conceding—far less drawing attention to the fact—that their subject-matter is of little importance. This one, however, must. On 18 December 2012, the Commission on a Bill of Rights, almost two years after its establishment was announced to Parliament, published its Report. Divisions within the Coalition Government that were reflected in the Commission’s membership meant that the Report was never likely to contain clear-cut proposals capable of straightforward implementation. The Report nevertheless had the potential — by clearly demarcating the parameters of the debate and lucidly confronting the implications of the options available — to supply an authoritative reference ‑point for future discourse about the possibility of a “UK Bill of Rights”. The Report, however, signally fails to realise that potential; far from clarifying at least the parameters of the debate, its effect is essentially obfuscatory. Indeed, for reasons explored in this paper, if a domestic Bill of Rights is ever adopted and its history subsequently written, the Commission’s Report is likely, at the very most, to warrant a footnote. Paradoxically, however, the reasons that help to explain why the Report itself is a damp squib fully deserving of its likely fate in the long grass are themselves of great significance—not least because understanding what went wrong this time around may sharpen our appreciation of the characteristics that a future, mature Bill of Rights debate will need to have.
Elliott concludes that
The many shortcomings of the Report of the Commission on a Bill of Rights serve—in a somewhat perverse way—to point towards how a meaningful Bill of Rights debate might be conducted. Most obviously, such a debate would have to confront the big questions that the Commission was unwilling or unable to address. In particular, those & arguing for a UK Bill of Rights need to be clear—and need to be forced, through reasoned argument, to be clear— about what it is they are advocating. One of the principal factors that devalues the present Report is the chameleonic nature of the Bill of Rights that it proposes. A discussion about whether the UK should adopt a Bill of Rights is necessarily vacuous unless there is transparency about what sort of Bill of Rights is envisaged. And adopting a clear position in relation to the latter question necessitates confrontation of the sort of underlying, fundamental issues whose absence from the Report is so keenly felt.
The long grass is usually regarded as a habitat whose inhospitability to good ideas forms a source of regret. Occasionally, however, it is just the right place for proposals that are inchoate, inadequately reasoned or intellectually feeble. As such, it is precisely the right place for the Report of the Commission on a Bill of Rights—and exactly where it is likely to end up. But this does not mean that the Bill of Rights debate is over. Rather, the increasing explicitness with which politicians are willing to countenance withdrawal from the ECHR suggests that the debate is moving into new and uncharted territory, in which the stakes are very much higher. It is time, therefore, for those who oppose the HRA and the UK’s membership of the Council of Europe to nail their colours to the mast. And it is equally time for those who adopt the opposing position to articulate as persuasively as they can the case for strong judicial protection of rights whose fundamentality transcends national boundaries. The latter case is undoubtedly the stronger one—but neither the need to make it vigorously, nor the uphill struggle likely to be encountered in doing so, should be underestimated.