barmag67 Jan. 2016 | Page 28

The impact of The British Bill of Rights on our judiciary system By Bambos Tsiattalou, a Senior Partner and founding member of Stokoe Partnership T he first thing to point out when discussing the possible repeal of the Human Rights Act and its replacement with a completely new British Bill of Rights is that nobody can truly be certain of anything, except that it appears that large scale change is on the way, and the impact upon court cases and tribunals of all kinds is likely to be huge. The Bill itself hasn’t been unveiled yet, and the hints given by various government spokespeople tend to be fairly broad in nature. Indeed, so too are the particular proposals which have emerged from both the 40 page draft bill produced before the last election by Martin Howe QC, and the Conservative Party Working Paper ‘Protecting Human Rights in the UK’. There is still a degree of uncertainty as to whether any Bill will get past Conservative backbenchers in the House of Commons. Balanced against those members who view this as a chance to break free from the undue influence of the European Court of Human Rights in Strasbourg, are a significant number who view any move away from the Human Rights Act and towards a British Bill of Rights as presenting a risk to basic human rights in the UK. Human Rights Act came into force in 2000, it enshrined the principles of the European Convention on Human Rights (ECHR) into UK law. These principles were drawn up in the aftermath of World War Two, and included rights such as the right to life, liberty, a fair trial, freedom of expression and a respect for private life, as well as the prohibition of discrimination, slavery and torture. The feeling amongst those who wish to repeal the Human Rights Act 1998, and replace it, is that the European Court of Human Rights has, undergone a degree of ‘mission creep’. They argue that it has been interfering in judgements made in the British courts in a manner far removed from the intentions of those who originally drew up the ECHR. Examples often utilised by the proponents of change include the ruling, handed down from Strasbourg, stating that a blanket UK ban on prisoners voting was unlawful. This is coupled with the lengthy legal struggle needed to deport radical Islamist cleric Abu Qatada, a struggle which hinged on the European Court of Justice’s ruling that some of the evidence used to convict him may have been obtained via torture. Add to this the fact that any bill is bound to receive a forensic and not necessarily sympathetic examination in the House of Lords, and will also have to be crafted in a manner that can cope with the pressures placed on it by the various devolved parts of the UK creating a process which is far from straightforward. At present, the 1998 Human Rights Act forms a central plank of the devolution agreements pertaining to Wales, Scotland and the Good Friday Agreement in Northern Ireland. Disentangling it to the point at which it can be removed altogether and replaced with something entirely new, will require more than a little legal and political dexterity, particularly if it isn’t to amplify demands for another independence referendum in Scotland. The basic aim of the legislation is to remove the link between British courts and the European Court of Human Rights, contained within section 2 of the Human Rights Act, requiring domestic tribunals and courts to ‘take into account’ judgements made in Strasbourg. It is stated that any Bill of Rights will still be based upon the principles of the European Convention of Human rights, but will instruct UK Courts to give a narrower definition to some of these rights than has been offered by the court in Strasbourg, and will only allow Human Rights to become part of a defence in ‘the most serious cases.’ The examples of ‘serious cases’ given so far include those which involve property, criminal law and liberty, but not, for example, cases hinging upon torture, freedom of speech or due process. The case for and against the creation of a new Bill of Rights, can be summarised fairly simply. When the Some opponents of the changes argue that, while the Strasbourg Court may well, upon occasion, stray into areas in