The European Court would, with the introduction of a British
Bill of Rights likely give greater leeway to British judges. The repealing of the Human Rights of 1998 would limit the influence of British judges over the interpretation of pertinent legislation by enshrining the central features of the Act that reflect the English common law. At the very least, if
British judges feel that acts of Parliament are wholly incompatible with the European
Convention or with EU law.9
To be effective as a complete solution to the problems which we have identified above a British Bill of Rights also would need to be accompanied by reforms which reinstate the British
Parliament's role as the sovereign authority over the whole legislative process. This would not be sufficient, however. At the domestic level, there would still would be no effective democratic check upon the British judiciary system. At an international level, there would be no impediment to keep a case from coming before the European Court of Human Rights in Strasbourg where rights that are contained only in the British Bill of Rights and are more advanced in this respect by European Law, could not be trumped by those in he Strasbourg Court which would, attempt to assert the primacy of EU "rights" over traditional British basic human rights as laid out in the Common Law. This has been admitted to even by the Thorbjorn Jagland, the European human rights chief.10
Conclusion
In this short essay, the author has assessed the case for a British Bill of Rights designed to replace the UK Human Rights Act of 1998. It is the opinion of this author that without the formal enshrining of our many traditional British liberties derived from common law in such a document, it is too tempting for politicians to overlook them for the expediencies of national security, public interest, or pressures of speed. The real issue seems to be making sure that our most precious liberties are protected under our internal British laws in order to make sure that such basic and sacred rights as a jury trial are not tampered with. In the past, we have relied upon our "unwritten" British constitution to safeguard our traditional and common law rights. Now, increasingly, we are finding these endangered...
While free speech is a precious civil right, it seems that the tradition of the jury trial requires the most protection and it is this institution that is most under attack. Without this basic right protected, many of the rest, free speech included will fall away. This is why it so important and basic to adopt a formal British Bill of Rights sooner rather than when we find it is too late.
1 Geoffrey Robertson Q.C., 'Why We Need a British Bill of Rights' (Stand Point Mag January/February 2010
), .
2 Joint Committee on Human Rights
, A Bill of Rights for the UK?
(Twenty -- Ninth Report of Session? 2007 -- 08)?, 5.
3 Thirty-second Report of Session 2005-06, The Human Rights Act: the DCA and Home Office Reviews, HC 1716, HL Paper
278; Sixth Report, Session 2007-08, The Work of the Committee in 2007 and the State of Human Rights in the UK, HC
270, HL Paper 38, paras 3-4.
4 Henry Porter, 'Ken Clarke is Ready to Betray 800 years of British Justice', (The Guardian 15 January 2012)
.
5 Secretary of State for Justice, Justice and Security
Green Paper
(Cm 8194, 2011), para 1-16.
6 Henry Porter,, Ken Clarke is ready to betray 800 years of British justice', (Ther Guardian, 15 January 2012),, http://www.guardian.co.uk/commentisfree/2012/jan/15/henry-porter-ken-clarke-bill-of-rights?newsfeed=true..
7 Owen Bowcott, 'Government 'considers cutting defendant rights to jury trial', (The Guardian, 16 January 2012),
.
8 Michael Pinto-Duschinsky, Bringing Rights Back Home Making Human Rights Compatible With
Parliamentary Democracy in the UK,
61-62, .
9 Merris Amos, 'Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer
', The Modern Law Review, 2009, Volume 72, Issue 6, 883.
10 Daniel Martin, 'Now Even Europe's Human Rights Chief Admits British Bill of Rights is the Right Thing to Do', (Daily Mail, 27th October 2011), http://www.dailymail.co.uk/news/article-2054403/Now-Europes-human-rights-chief-admits-British-Bill-Rights-right-thing-do.html..
