Is the time right to prepare for a Welsh Bill of Rights?

For the past few years, Theresa May, both as Secretary of State for the Home Department and as Prime Minister, has vowed to repeal the Human Rights Act (HRA) 1998 and replace it with a British Bill of Rights. As a law student with a strong interest in human rights, it is difficult to consider what benefits could be gained from this. In fact, the Conservative’s own campaign for a British Bill of Rights appears to have been littered with rhetoric and what could be viewed either as misconceptions, or as the intentional deception of voters using misleading ‘facts’, a common tactic in this so-called ‘post-truth’ world.

 

An example of this is contained in the Conservative’s proposal for a British Bill of Rights, in which it states that the European Court of Human Rights (ECtHR) has banned whole life sentences. However, this is clearly not the case. In fact, whole life sentences have been used in the UK since this judgment. The truth is that whole life sentences are still permitted, provided that there is a realistic prospect of release, simply meaning that the convicted person’s circumstances must be reviewed. This is a position which many will see as much more reasonable than the misleading position expressed in the Conservative’s proposal. There will also be many people who remember Theresa May’s assertion about the UK’s inability to deport a person because they had ‘a pet cat’.

 

One must wonder, therefore, why Theresa May wishes to repeal the HRA 1998 when many of the reasons relied on in the Conservative’s proposal are misleading, and other reasons are no more than rhetoric. It seems that the only possible reason is that Theresa May wishes to do things differently to the ECtHR. Some of the ways in which Theresa May may wish to do things differently are merely concerning, while others could prove to have dark consequences.

 

One potential difference is within the right to privacy and the state’s use of surveillance. Past cases involving the UK in the ECtHR have shown that the UK and the ECtHR are often at odds with regards to how much surveillance construes a breach of citizens’ right to privacy and the UK has continued to push the line further with the passing of the Investigatory Powers Act 2016, often referred to as the ‘snooper’s charter’. It is expected, therefore, that Theresa May would use a British Bill of Rights to allow further extensive powers of surveillance. My view is that further powers of surveillance would amount to an unnecessary and unjustified encroachment of UK citizens’ human rights and is unlikely to provide any additional benefits to the extensive powers of surveillance already present in the UK.

 

Another potential difference is, however, much darker. During her time as Secretary of State for the Home Department, Theresa May has often expressed frustration at being unable to exercise the UK’s powers of deportation, such as in the well-known and controversial case of Abu Qatada. However, the ECtHR had very good reason for this. Had Abu Qatada been deported back to Jordan, it was likely that he would have been tortured, and the evidence gained from his torture would likely have been used in his trial. Regardless of the UK public’s views towards Abu Qatada, the use of torture is inhumane and does not belong in modern society. The UK should not, therefore, act as a catalyst to the use of torture.

 

So, if Theresa May is to push forward with her proposal to replace the HRA 1998, should Wales push for their own ‘Welsh Bill of Rights’? The main argument against this is that views towards human rights in Wales is not significantly different to the views towards human rights in the rest of the UK and there is, therefore, no case for a Welsh Bill of Rights, as it is unlikely to be different than a British Bill of Rights. However, this fails to consider the relationship between how these views are formed and how laws are formed.

 

There have been many arguments that laws are formed by the public’s views and morals, while others argue that the law forms the public’s views and morals. However, my view is that, while the latter is more frequently the case, both statements are true. It has been seen that some laws, when first passed, were highly controversial. Yet, those same laws are now considered as the norm and uncontroversial. However, there have also been instances where political pressure by those who hold different views and morals to the law has led to a change in the law. It can, therefore, be seen that both statements are true.

 

Therefore, it is futile to wait for a difference in views between Wales and the rest of the UK before pushing ahead, because this difference in views is most likely to occur through a change in the law. Rather, it should be seen that a change in people’s views is necessary to protect the fundamental rights of Welsh citizens, such as those mentioned above in relation to the rights of privacy and surveillance, and deportation. There could also be an opportunity for further developments, for example, into social and economic rights, including the right to housing. As Virginia Mantouvalou states, some social and economic rights are more important than, and often necessary for the securing of, political and civil rights. For example, “what does the inviolability of the home mean for the man who has got no home?”. If Wales were to expand into the realm of social and economic rights, now would be the ideal time to begin planning for such a development.

 

While it is unlikely that the ECHR will be repealed anytime soon, with many issues being put to one side to focus on the Great Repeal Bill, its repeal seems inevitable. Adam Wagner, the well-known human rights barrister, has even expressed on Twitter how the Conservatives could campaign on a platform of repealing the ECHR in the build-up to the recently called snap-election on 8th June. It is, therefore, likely that the repeal of the ECHR will occur during what will likely be a renewed term for a strengthened Conservatives. While it may seem too soon to begin planning for such an eventuality, there would be many benefits to beginning soon.

 

It is important not to rush human rights, given their importance and the implications which could follow a poorly drafted bill of rights. This is especially the case if Wales were to develop into social and economic rights, where significant forward planning would be required to put the correct steps in place. How these rights are framed and upheld are also important considerations, which could support a distinct or separate Welsh Jurisdiction to reduce the possibility of confusion. However, most importantly is the negotiating which will likely be required, as the Conservatives are likely to be hesitant to allow a Welsh Bill of Rights. The above considerations are just a sample of the important and necessary considerations which demonstrates why now would be the ideal time to begin planning for the eventuality of a British Bill of Rights.