The Bill of Rights leak shows draft plans are plainly flawed

Following the leak of a 'blueprint' for the replacement of the Human Rights Act with a British Bill of Rights, The Sunday Times reported earlier this month that, under the new system, judges would not have to follow rulings of the European Court of Human Rights (ECtHR) 'slavishly' any longer.

Instead, they will be able to rely on the common law or rulings by courts in other Commonwealth countries, such as Australia and Canada, when making their judgments. The argument may sound plausible to the uninitiated - the anti-European voter may readily accept it - but, from a legal perspective, it is plainly flawed.

The proposals reveal grave misconceptions about the nature of the European Convention on Human Rights (ECHR) and its relationship with comparative law, if not a cynical attempt to trivialise the effects of putting in place a UK human rights system à la carte.

Of course, we must wait for the Bill of Rights consultation to be published to say how much emphasis has effectively been placed on the comparative law arguments, but a number of quick responses can be provided.

Law of the absurd

First, UK courts have never stopped applying the common law where there is a gap in the legislative framework or need for historic interpretation.
They have always been able to rely on the judgments of other Commonwealth courts.
The promise, therefore, to give courts something they already have in exchange for a mechanism that has become so central to modern conceptions of the rule of law and the administration of justice in the UK verges on the absurd.

We may even assume that our courts have somehow been oblivious to the richness of comparative law resources inherent in ever-increasing interactions with modern
legal systems.

This would apply to our Supreme Court in particular, which has at times demonstrated an excellent ability to adopt cosmopolitan approaches, often extending beyond Commonwealth jurisdictions or the common law. A case in hand is Cadder v UK [2010] UKSC 43, where the court looked at custodial interrogation practices in Belgium, France, the Netherlands, and Ireland, before extending the scope of the right to legal assistance in Scotland.

Even if we do assume this, it is far-fetched to imagine that a renewed, super-charged focus on the rulings of foreign courts can somehow substitute for drawing upon the most advanced regional system
of human rights protection
in the world: the ECHR.

As the renowned French comparatist Delmas-Marty graphically put it in Les forces imaginantes du droit: Le relatif et l'universel, the ECtHR 'obliges states to legislate in domains… where no one dared venture'. For all its persuasive force and intellectual rigour, comparative law plays a different, incomparably more delicate role altogether. It can support ECHR jurisprudence, enhancing its appeal to national courts, including challenging it critically. It cannot be a substitute for it.

Slipping standards

The leaked blueprint, and the debate around a British Bill of Rights more generally, intentionally disregards the important role the ECtHR has played (and can continue to play) in shaping human rights standards in Britain. It gives 'comparative law' a function this fascinating intellectual field has never sought, and is not suitable to exercise.

Perhaps, then, this is an argument for a human rights protections-lite, one that will not threaten to bite in the same ways that Strasbourg allegedly does.

Of course, much of the debate on the ECtHR rests on the premise that UK courts (or other courts in Europe for that matter) uncritically accept judgments from Strasbourg. Nothing could be further from the truth, as the Horncastle and Al-Khawaja saga on hearsay evidence aptly demonstrates (R v Horncastle and others [2009] UKSC 14; Al-Khawaja v United Kingdom (2009) 49 EHRR 1).

A final observation needs to be stated. The Ministry of Justice's call for the use of foreign law as a substitute for the ECHR sounds questionably oxymoronic. Strasbourg does foreign law par excellence, having become a prime laboratory for the development of human rights standards, based on the experiences of the 47 Council of Europe member states that have ratified the convention and the 800 million Europeans to whom these standards apply.

The debate on the British Bill of Rights is promising to be highly controversial. The reforms contemplated can gravely affect the future of human rights standards in Britain. It is therefore crucial that this is an evidence-based debate and that a clear view is taken of what the ECtHR has done for Britain and conversely what the common law has done for the ECtHR.

Dr Dimitrios Giannoulopoulos is a senior lecturer in law and college associate dean at Brunel University London. He is also the founder of the Britain in Europe thinktank ?@BRinEUROPE www.brunel.ac.uk/law