A forceful case has been made for the UK Government to rethink its plan to replace the Human Rights Act with a British Bill of Rights, according to a House of Lords report published today.
In its report the EU Committee's Justice Subcommittee states that the proposal outlined to it by Michael Gove, the Secretary of State for Justice, appeared to be “far less ambitious” than contained in the Conservative manifesto, would not depart significantly from the Human Rights Act, but might damage the UK's standing within the Council of Europe and the European Union, and its moral authority internationally.
“If a Bill of Rights is not intended to change significantly the protection of human rights in the UK, we recommend the Government give careful thought before proceeding with this policy. As the former Lord Chief Justice Rt Hon Lord Woolf CH told us, the repeal of the Human Rights Act and its replacement by a Bill of Rights would be a constitutional change of the greatest significance”, the report concludes.
It also suggests that they might lead to an increasing reliance on the EU Charter of Fundamental Rights in the UK courts if the scope of the Human Rights Act is reduced, and warns that they risk “constitutional upheaval” with the devolved nations, with the consequence that the proposed UK Bill of Rights could end up as an English Bill of Rights.
Regarding the EU Charter, the report notes that it only applies to decisions within the scope of EU law (defining which has itself given rise to much litigation), whereas under the Human Rights Act every decision of every public body must be compatible with the Convention. However the EU Charter would be likely to be given primacy over the Bill of Rights, as national law.
Baroness Kennedy of the Shaws QC, who chairs the 12-member subcommittee, commented: “Our evidence from the Secretary of State for Justice was the first time the Government has explained why it wants to introduce a British Bill of Rights. The arguments seemed to amount to restoring national faith in human rights and to give human rights a greater UK identity. The proposals he outlined were not extensive, and we were not convinced that a Bill of Rights was necessary.
“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. This seemed to be a perverse consequence of a Bill of Rights intended to give human rights greater UK identity.”
On the implications for the devolution settlements, the report concludes that the Government faces substantial difficulties implementing a British Bill of Rights in the devolved nations. It accepts that the Scottish Parliament and Northern Ireland Assembly are unlikely to give consent to a Bill of Rights which repealed the Human Rights Act, adding: “Were the UK Government to proceed without such consent, it would be entering into uncharted constitutional territory.”
Baroness Kennedy observed: “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.”