Yesterday, we joined with our colleagues on the commission on a Bill of Rights in recognising that now is not the moment to embark on changes to the Human Rights Act.
We all accepted that future developments must await the outcome of the Scottish referendum, after which a Constitutional Convention will be the best place to consider human rights issues, fully involving all parts of the UK.
We dissented on a key issue, namely whether to present that future constitutional process with a recommendation favouring a new UK Bill of Rights. We do not believe that the moment is ripe for such a conclusion, and prefer to leave open all options, including the status quo, a new Bill of Rights, or revamped constitutional arrangements that would fully incorporate and build upon the rights protected by the Human Rights Act. Why? Firstly, devolution: as the UK undergoes significant change in a possible move towards a federal state, any changes to existing arrangements on human rights must await the reconfiguration of the UK.
Second, the views expressed to the commission, which our colleagues have largely ignored, with considerable opposition to a UK Bill of Rights. The majority has rested its case on a claim that existing arrangements have little public support and there is an “ownership” problem, yet it is abundantly clear that no such sentiment exists in Northern Ireland, Wales and Scotland, or large swaths of England. Third, the views of some of our colleagues on the commission, for whom a Bill of Rights appears to be little more than a means to abandoning the European Convention.
The majority’s bald statement of support for a Bill – even in principle – masks profound differences and offers a false and misleading impression of which we could not be a part. The case has not been made, and the arguments put to us against such a Bill remain more persuasive. We oppose a UK Bill of Rights that is not supported by the whole of the UK, that will be used to strip people of basic rights and decouple the UK from the European Convention, and that can only add fuel to the arguments of those who seek the break-up of the UK.
Philippe Sands QC is Professor of Law at University College London; Helena Kennedy QC is a member of the House of Lords.