Jean-Yves Gilg

Editor, Solicitors Journal

Government should 'think again' on British Bill of Rights, say peers

Government should 'think again' on British Bill of Rights, say peers


Constitutional upheaval and damage to the UK's international standing leave Lords committee unconvinced by plans to scrap the Human Rights Act

The government should think again on its plans to pass an unnecessary British Bill Of Rights that may damage the UK's international standing and risk constitutional upheaval with the devolved nations, peers have declared.

Giving evidence to the House of Lords EU Justice Committee earlier this year, the justice secretary, Michael Gove, said that introducing a Bill of Rights would restore national faith in human rights, and give them a greater national identity.

The secretary of state claimed human rights had become associated with 'unmeritorious individuals pursuing through the courts claims that do not command public support or sympathy' and that they had come to be seen as a foreign intervention.

However, in what will be seen as a blow to the government's manifesto plans, the committee said that the evidence it received makes 'a forceful case' for the government to think again on its policy.

Baroness Helena Kennedy, chairman of the Lords' EU Justice Sub-Committee, said that, upon hearing the arguments put forward by the justice secretary, peers were 'not convinced that a Bill of Rights was necessary'.

Considering the evidence before them, peers found the proposals would not significantly depart from the existing Human Rights Act (HRA) and were likely to 'affirm' all the rights contained within European Convention on Human Rights (ECHR), making the necessity of a Bill of Rights unclear.

Having held eight evidence sessions with academic legal experts, practitioners, politicians, and judges, the committee found that scrapping the HRA in favour of the Bill of Rights might damage the UK's standing within the Council of Europe and the EU, and its moral authority internationally.

Former attorney general Lord Goldsmith warned of the 'terrible message' that the UK's move away from the ECHR, by repealing the HRA, would send to other countries.

EU law

In addition, the committee's report, 'The UK, the EU and a British Bill of Rights', found that, if the scope of the HRA was reduced, then the new Bill could lead to an increased reliance on the EU Charter of Fundamental Rights in UK courts.

'Many witnesses thought that restricting the scope of the Human Rights Act would lead to an increase in reliance on the EU Charter of Fundamental Rights in UK courts, which has stronger enforcement mechanisms,' said Baroness Kennedy. 'This seemed to be a perverse consequence of a Bill of Rights intended to give human rights greater UK identity.'

Providing evidence to the committee, Aidan O'Neill QC of Matrix Chambers told peers that 'clever and imaginative lawyers might try to push matters … and the Court of Justice might get more references from national courts'.

Professor Michael Dougan of the University of Liverpool agreed, saying there would almost certainly be an increase in litigation, because 'lawyers would advise their clients to try to fit into the EU regime rather than the common-law regime'.

The committee concluded that the government should give careful consideration to the likely rise of references from UK courts to the European Court of Justice when deciding on whether to introduce the Bill of Rights.

Devolution arguments

With human rights entrenched in the devolution settlements of Scotland, Wales, and Northern Ireland, peers also considered the potential impact of scrapping the HRA on the devolved nations. The ECHR and the HRA were described as vital in the implementation of the Good Friday Agreement by legal academics and the Republic of Ireland's government.

The committee said that should the UK government proceed with its plans - without the consent of the devolved nations - it would be entering uncharted constitutional territory. This, the report found, risked constitutional upheaval, with the consequence that the proposed British Bill of Rights could end up as an English Bill of Rights only.

'If for no other reason, the possible constitutional disruption involving the devolved administrations should weigh against proceeding with this reform,' said the report.

'We heard evidence that the devolved administrations have serious concerns about the plans to repeal the Human Rights Act,' said Baroness Kennedy. 'If the devolved Parliaments withheld their consent to a British Bill of Rights it might very well end up as an English Bill of Rights, not something we think the government would want to see.

'The more evidence we heard on this issue the more convinced we became that the government should think again about its proposals for a British Bill of Rights. The time is now right for it to do so.'

The committee's report also poured cold water on the justice secretary's proposals to model the UK Supreme Court on the German Federal Constitutional Court, describing the plan as 'ill-suited' to the UK's constitution.

Giving a speech last month on Britain remaining in the EU, the home secretary, Theresa May attacked the ECHR, claiming it prevented the deportation of 'dangerous foreign nationals' which made the UK less secure.

The speech, seen as a prelude to a potential leadership bid, caused confusion in parliament and some embarrassment to the justice secretary and his team who were forced to face uncomfortable questions from MPs just 24 hours later.

Writing to the Lord Chancellor last month, Harriet Harman invited Michel Gove to give oral evidence to the Joint Committee on Human Rights concerning the 'lack of clarity [the home secretary's comments] have created regarding the government's policy on the UK's relationship with the ECHR'.

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