Thread by @GeorgePeretzQC

A few comments on the current government’s consultation document on “A Modern Bill of Rights”.

First, the title “Modern Bill of Rights”. It hints at a powerful statement of what our fundamental rights should be.

In reality, this “Modern Bill of Rights” is little more than a cutting back of the existing Human Rights Act. No consideration of any additional rights apart from a tepid nod to the idea of a right to jury trial.

(Tepid because it will hit the reality that the overwhelming bulk of criminal cases are decided by magistrates.)

I have always suspected that any “British Bill of Rights” resulting from any process that engaged the public in any meaningful way would include a right to free healthcare at the point of need. Ruled out of court here.

But one set of rights generates real enthusiasm, and we are told needs strengthening.

Difficult not to be cynical about the enthusiasm for freedom of the press (against privacy rights, where an unattractive case is highlighted rather than eg ordinary people whose lives are suddenly all over the front pages).

Where is the equivalent enthusiasm for equally historic and fundamental rights to protest?

As to the cutting back of the Human Rights Act. This is concerning.

What it would mean is that statutory instruments (ministerial law-making that gets no, or limited and inadequate, Parliamentary scrutiny) might well continue in force even if a court finds they breach the HRA.

The issue there is - in reality - about limits on executive power, not any tension between the courts and Parliament.

Next, section 3: the duty to read other legislation, if at all possible, in a way consistent with the HRA.

Again, a skewed list of examples of its use, focusing on “unattractive” cases. Why not talk about Ghaidan (consigned to a bare footnote)?

In Ghaidan, section 3 allowed old law about a husband/wife’s right to inherit statutory tenancies to be read to extend to gay partners (this was before civil partnerships/equal marriage).

Entirely consistent with Parliamentary sovereignty: Parliament tells the courts that it intends all legislation to be read through a human rights lens, if at all possible.

And it reflects a reality that human rights issues are often not picked up during the legislative process, or emerge years after the legislation is passed, as society changes (the situation in Ghaidan).

Lots more to be said. But those are some of the points that leapt out at me on a first read.

More generally, I wrote a piece in 2020 for @thefabians on how the Left should think about judicial review (and human rights review in particular) that is relevant to these issues. fabians.org.uk/held-to-accoun…