Posted on 20th June 2016
Last month, the House of Lords EU Justice Sub-Committee published its report, “The UK, the EU and a British Bill of Rights” on the Government’s proposal to repeal the Human Rights Act (HRA) and introduce a British Bill of Rights.
The cross party committee’s conclusion was that the Government should rethink its plan to abolish the Act, given its evidence had failed to demonstrate “why a British Bill of Rights was really necessary”.
The Government’s purported objectives in introducing a British Bill of Rights are to restore national faith in human rights and to give human rights greater national identity, by breaking the “formal link between British Courts and the European Court of Human Rights” and making the UK Supreme Court the “ultimate arbiter of human rights matters in the UK”.
Evidence given to the committee by Michael Gove, the Secretary of State for Justice, suggests that the Bill of Rights would not be significantly different from the HRA as it would still incorporate all the rights contained in the European Convention of Human Rights (ECHR), although it would look to emphasise the importance of some rights over others. It is perhaps unsurprising therefore, that the Committee concluded there was insufficient evidence to justify the creation of a Bill of Rights.
The ECHR was drafted by the Council of Europe following the Second World War to promote human rights, fundamental freedoms, democracy and the rule of law. The UK was a founding signatory and ratified the ECHR in 1951. The Human Rights Act 1998 currently incorporates the ECHR into UK law and already performs the core function of a Bill of Rights for the UK. At the same time, the Act respects Parliamentary sovereignty – nothing in the HRA actually binds British Courts to follow cases decided at the European Court of Human Rights. Instead, British Courts have only to “take into account” the case law in so far as they deem it relevant to the matter before them. It can be argued therefore, that the HRA is already very British, a point that again led the Committee to question the need for a Bill of Rights at all.
Although there is currently no suggestion that the UK will withdraw from the ECHR (even in the event that Britain votes to leave the EU), if the UK did decide to depart from the standards of the ECHR within the Bill of Rights, the Committee found that it may damage the UK’s standing within the Council of Europe, the EU and the United Nations, undermining its moral authority internationally. Indeed, former attorney general Lord Goldsmith warned of the terrible message that the UK’s move away from the ECHR would send to other countries. By repealing the HRA, we would be signalling to countries with poor human rights that this is acceptable.
The committee also warned about the prospect of narrowing the scope of citizens’ rights, warning that repeal of the HRA would leave only the Charter of Fundamental Rights of the European Union (the EU Charter). The proposed Bill of Rights does not address its relationship with The EU Charter which brings together in a single document the fundamental rights protected in the EU and contains rights and freedoms under 6 chapters: Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights and Justice. Whilst the EU Charter establishes certain rights for EU citizens, it only applies to public bodies when making decisions within the scope of EU law. Therefore, although many of the rights contained in the ECHR overlap with the rights in the EU Charter, the scope of the ECHR and therefore the HRA is much wider. All the experts the Committee spoke to, considered this wide scope to be the main strength of the HRA.
The Committee also found that if the Bill of Rights restricts victims’ rights to bring legal challenges there may be more challenges under the EU Charter which would mean UK courts having to refer cases to the European Court of Justice in Luxembourg to understand the exact scope of applicable EU law. This would lead to greater delays in access to justice. Furthermore, even if the HRA were to be abolished, UK citizens would still be able to file a petition with the European Court of Human Rights in Strasbourg (as long as the UK remains a signatory to the Convention). This is a lengthy process and would take a number of years. Compare this, to the current situation where UK citizens can have their matter dealt with by the British courts, a quicker and more cost effective route than having to revert to the Court in Strasbourg.
Whether or not the Government heeds the warnings contained within the report and reconsiders its proposal for a British Bill of Rights remains to be seen. In the recent Queen’s Speech, it was stated that, “Proposals will be brought forward for a British Bill of Rights”. Although the timing of this is unclear, if it were to go ahead, it would be against the advice of many experts in the field.
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