Plans to introduce a British Bill of Rights should enhance existing protections
The Law Society of Scotland comments on the proposals to introduce a British Bill of Rights following the Queen’s Speech on Wednesday, 18 May 2016.
Michael Clancy, Director of Law Reform at the Law Society of Scotland, said: “Today’s Queen’s Speech has confirmed that the UK Government’s plans to introduce a British Bill of Rights. This should be an opportunity for the government to improve on the current Human Rights Act and enhance protections available to people.
“We believe that the Human Rights Act 1998 is a key component of our society and has been extremely effective in protecting our rights through the domestic courts in the UK. It provides a way for individuals to challenge the actions of the state and seek redress in a more accessible, timely and affordable way than was possible before incorporation of the European Convention on Human Rights (ECHR) into UK law.
“However we think there is room for improvement of the Act, and the proposed British Bill of Rights should build on and enhance the protections we currently have. For example it could include a provision of a better way to amend legislation which has been declared incompatible with ECHR by the courts. It could also offer more clarity than the Human Rights Act on how such rights would apply to private bodies exercising public functions or providing public services as well as individuals.”
The Law Society of Scotland has stated that a British Bill of Rights which would cover the whole of the UK would have to be compatible with each of its distinct legal jurisdictions.
Mr Clancy said: “Any plans to introduce a British Bill of Rights would have to take account of the different legal jurisdictions within the UK. For example “the right to trial by jury” operates differently in Scotland from England and Wales.
The Law Society has also said that a stronger judicial role may be needed if a Bill of Rights is introduced. The current arrangements under the Scotland Act 1998 provide a much stronger way of dealing with non-compliance with ECHR by Scottish Ministers than the HRA provides for the UK Parliament and UK Ministers.
Mr Clancy added: “It’s important to remember that as long as the UK remains a party to the ECHR, the ECHR rights will be binding on the UK and can, through the Human Rights Act, be actionable in UK domestic courts. If however, the ECHR is no longer directly incorporated into the UK’s domestic law, individuals would have to go to the ECtHR in Strasbourg to enforce their rights under the convention. This was the situation prior to the enactment of the Human Rights Act in 1998 and in our view a return to this would be a backwards step.”