Home page A Bill of Rights? David Cameron has suggested that there should be a Bill of Rights as a solution to some of the ills facing Britain. However, his suggestion has met with a very mixed reaction on the part of commentators. We asked Hector McNeill, the Director of Emacipation, to comment on this suggestion. Hector McNeill "David Cameron recently stated that criminals released too early into the streets and terrorism threaten the safety of the public. He has also implied that the Human Rights legislation is giving such people too much protection and that in order to enhance the protection of the public he wants to introduce a Bill of Rights. I think David needs to be thanked for focusing on this issue. First of all it is necessary to put the concept of a Bill of Rights in context. There have been two well known Bills of Rights, the English Bill of Rights of 1689 and the American Bill of Rights of 1789. But these complemented existing constitutional arrangements. They were also very watered down versions of "An Agreement of the Free People of England" drafted and issued by John Lilburne and other Levellers in 1649 when they were locked up in the Tower of London. The thrust of most modern human rights conventions and legislation can be found in that document, including issues on anti-discrimination, including on grounds of religion. The fundamental issue is that the Lilburnian version places emphasis on the ability of a free people to defend the freedom of others through the effectve exercise of a jury and that all, including politicians, are of equal status under the law. For any Bill of Rights, to contribute effectively to securing the protection of individual freedom it needs to emphasise the role of the community conscience in the creation of legislation as well as in its implementation. So there is a need for a free assembly of free voting parliamentarians analysing, amending and voting upon propostitions from government. The community conscience can only be faithfully represented by MPs if they are free voting. At the level of implementation, so as to avoid arbitrary decisions, the community conscience also has to be present in the form of a jury. The reason for these provisions is that it is the people who vote to agree to legislative provisions and it is the people who should continue to have an oversight to see that it is applied fairly. Unfortunately the track record of political parties and governments, both bent on power, is poor to the degree to which fundamental rights are not protected in practice. This is because they see each ministry as a separate brief, each like a barrister's case. This is the fundamental reason why we face the absurd paradox of rights written into one law being abused by events enforced through some other law or policy. For fundamental rights to work, the central document, call it Bill of Rights if you wish, has be be sacrosanct to the degree that no policy, agreements or legislation can be permitted to interfere with its effective securing of those rights by, at all times, defending the individual freedom of all people in Britain. The delinquency of political parties and governments on this matter can be seen in, for example, foreign policy decision-making. The British government has taken decisions, with the support of other political parties, to participate in the invasion of Afghanistan and Iraq. As a direct result of this act, the security of the people of Britain has been severely compromised, as the attack on the London Underground has demonstrated. Many service workers and consultants have lost their livelihoods because of fear of working in specific countries where British subjects have become fair game. It does not matter what the Prime Minister and others say they are doing in the name of freedom, democracy and the rule of law on the international stage, their first duty should remain the security of the individual freedoms of the people of Britain. They have failed to achieve this in practice. Their action has resulted in the people of the United Kingdom being a target of terrorists. On the matter of the European Human Rights Convention it is worth looking at this in the same vein. The European Human Rights Convention is essentially a copy of the UN Human Rights Convention to which most countries are signed up to. The European version came about via the Council of Europe which is a non-European Union organization covering a very large number of countries, now 47, many of whose governments had, and still have, unacceptable human rights records. This was an attempt to put the Council of Europe on the map as it were. This whole process gave this organization a purpose to set up a specialised court dealining with human rights. This was set up as the Court of Human Rights in 1959 and then reorganized as the European Court of Human Rights (ECHR) in 1998. This court has several significant failings for a human rights court. The principle problems include the fact that there is no role for juries to represent the community conscience. As great a failing is that many of the judges are political party appointees and from countries with governments with bad human rights records. These judges fail even the most elementary tests of independence and impartiality. Within such a politicised system the issue of justice delayed is justice denied is par for the course with some cases having taken five years to be heard. There still is an unacceptable backlog (see Human Rights Court - not fit for purpose). There is also a tendency in this politicised court for an inherent bias towards declaring cases inadmissable. So between 1 November 2003 and 29 February 2004, a period of just four months, the Court looked at 7,315 cases, of which 6,255 were declared inadmissible. This is an 85.5% refusal rate. So the court of final appeal errs on the side of justice denied in the majority of cases lodged. In a typical political administrative move which lost sight completely of the fact they are dealing with human rights, the Council of Europe set up a working party to make the court more efficient. Extraordinarily, they have recommended that a single judge now decide on a case's admissibility when before an unacceptable kill rate was exercised by three judges; this will mean the refusal rate is likely to rise and vary according to the nationality and therefore relative impartiality of the judge concerned. In another extraordinary proposal, taking into account that all human rights cases are people specific, the Council proposed that where cases are broadly similar to ones brought previously before the Court, and are essentially due to a member state failing to change their domestic law to correct a failing highlighted by that previous judgement, the case can be decided by three judges rather than the seven-judge Chamber. This will only result in a sort of codified automatic procedure. Also cases may be declared inadmissible if it is considered that the applicant has not suffered 'significant disadvantage'. But what constitutes significant disadvantage will vary with the judge. The ECHR's procedures are unacceptable. Amnesty International has expressed concern that the new admissibility criteria means that individuals may lose the ability to 'gain redress for human rights violations'. I think Amnesty International is right. Even in what is the relatively rare event of a case making it through the selection procedures, decisions on cases are based on majority vote, and not unanimous vote, of a so-called panel of judges. So any case is won or lost in the balance of judges according to their origin. This process, if one cares to look at where these judges come from, and therefore their relative impartiality, can be seen to create the equivalent to bent juries. Invariably the judges from countries with a more independent judiciary will write dissenting opinions but, of course to no effect for they are in the minority. This is a highly politicised system and not to be trusted. It makes a complete sham of the idea of human rights are protected by law in Europe. This situation should have been sufficient for the whole European Human Rights project to have been rejected right at the start. But the world of political correctness, or expediency, is one within which political parties manipulate to stay on good terms with others in a macabre game called diplomacy. This state of affairs persists largely at the expense of people in need. It is notable that this festering issue of the lack of European judicial independence, and therefore suspect and degraded legal process, has never been addressed, let alone raised, in any European Union forum. I am not aware of any British politician referring openly to this ongoing scandal. Nominations of people as ECHR judges who are stooges of less-than democratic country leaderships are known, but only whispered about, confirming the view on the part of many governments, that the ECHR is a theatre to keep the public happy. The British government, without reference to the more calamitous and dangerous aspects of this system, but aware of its potential danger to the government, went through the motions of stating a preference to have the European Convention on Human Rights transcribed with "appropriate amendments" into UK law. To achieve this they transcribed a large proportion into Convention taking care to protect decisions taken under procedural due process accorded to other existing legal provisions, by considering any such decisions to not be in breach of Human Rights Law. So in that sense the objective of the British government was not to protect the public but rather itself. The most subtle fix by those who transcribed the Human Rights legislation into British Law was a tiny statement that nothing under the Act can be construed to be a criminal act. This simple statement was sufficient to prevent people in Britain, having the right to trial by jury in the case of human rights. They therefore severely weakened justice on human rights in exactly the same way as the European Court has done through denying any role for a jury of citizens. So, the British public is caught between relying on an ineffective transcription of the Convention geared to protecting the government and no right to a jury or going to the ECHR which, in practice, is a casino where the odds are fixed by politics since there is also no right to a jury. The fact that in specific cases rulings under the Human Rights Act have helped a handfull of people should not blind people to the fact that, in general, the system refuses help to the majority applying and is not impartial in the cases which are actually dealt with; it is a bad system. The Human Rights Act has been seen to protect foreign nationals who have been released from prison, from being deported. This results in their being released "into the streets" and free to offend again. This issue has nothing to do with Human Rights Law as such but is related to the fact that Britain has a bad system of vetting for release (parole) which results in too many people re-offending. Once someone is released from prison they are, before the law, innocent and above reproach, therefore the Human Rights Act protects them. This problem is with the release vetting procedures not the Human Rights Act as such. I should add that British judges so far, have proven to be scrupulously fair and impartial in their application of the European Rights Act. But the government, David and many others do not like this. But the solution to this is not to attack the very-much-to-be-valued impariality of British judges but to permit the community conscience, in the form of a jury, have a direct say in the release vetting procedures. Juries are unlikely to release people whom they consider to still remain a threat to society. This would have the effect of reversing the early parole bias. In conclusion, and referring back to David's proposed solution, I would suggest that the role of the community conscience has to take up a central role in the system of legislatiion through free voting parlaimentarians, a wider use of juries in cases involving any possible loss of freedom, including before trial, loss of property and source of income as well as a role in the process of decisions concerning early release from prison (parole). It would have been a jury which declared people coming up for parole, to have been guilty in the first place. A Bill of Rights could essentially be geared towards making the right of everyone to defend the individual freedom of others through the community conscience a central sacrosanct provision. But this can only work if legislators and policy makers in all domains of activity be required to ensure that decisions and actions do not compromise the central imperative of upholding individual freedom. At the moment, governments and political parties take decisions which impact individual freedoms in an abusive way. This is the real cause of the problems David refers to. For example, foreign policy decisions which have encouraged the spread of terrorism, have exposed people in Britain as targets just as the currently deficient parole policy procedures also potentially expose the public to harm. If such decisions and procedures had been required to uphold individual freedom within the United Kingdom it is unlikely that the country would have entered such a shambolic and risky war campaign nor would such an ineffective parole system have been able to come into place. To tilt all of this in favour of unholding the individual freedom of people in Britain I would add that there is a sound justification for the introduction of a robust system of tort provisions whereby those harmed or the families of those killed as a result of bad policy making can be afforded realistic compensation. There is also a need to make ministers and politicians personally responsible for the outcome of the decisions they have counselled when it turns out that these have been based soley on assertion with no evidence or on the basis of evidence which misrepresents the facts and an inadequate assessment of the likely impacts of advocated decisions on the individual freedoms of the people of Britain." 5th July, 2006.