Today the House of Lords European Union Justice Committee published a report on the Government’s proposal to repeal the Human Rights Act and replace it with a new Bill of Rights. The Committee said that there is a “a forceful case” for the Government to think again about the policy.
First, let’s clear up some confusion. Neither the Human Rights Acts or the proposed Bill of Rights has much to do with the European Union (EU). The EU is a 28-state political and economic union, of with the UK is currently a member. The Human Rights Act (HRA) gives effect in UK law to the European Convention on Human Rights (ECHR), which comes from the Council of Europe – a 47 state international organisation which aims to promote human rights, democracy and the rule of law. The EU is relevant, though, since there is a question over whether EU membership requires being signed up to the ECHR. Which is why this committee was looking at the issue.
And a second bit of possible confusion. Whilst the government has committed to replacing the HRA with a Bill of Rights, and has regularly promised that we will soon see the full proposals, we haven’t yet seen them. The latest delay has been caused by the EU referendum. The lack of solid proposals means the a lot of this committee’s work has been, in effect, shadow-boxing. However, we do know enough about the likely shape of the proposals to reach some fairly firm conclusions. So not a complete waste of time.
What is the House of Lords EU Justice Committee?
The committee is chaired by well-known human rights barrister Baroness Helena Kennedy. It sits the House of Lords (a chamber of the UK Parliament) when it works with European Union institutions and Member States. Its role is to try and influence policies and laws of the EU and to scrutinise the UK Government’s actions relating to the EU.
What is the Government proposing?
The Government’s long-standing proposal is to replace the HRA with a ‘British Bill of Rights’. The HRA currently gives effect to the ECHR in UK law, and says that every decision of every public body must be compatible with the rights contained in the ECHR.
The intention is that the Bill of Rights will “break the formal link” between the UK and the European Court of Human Rights, and make the UK Supreme Court the ‘ultimate judge’ of domestic human rights matters. It is suggested that the proposed Bill of Rights will contain all of the rights in the ECHR, but might emphasise the importance of some over others. There is some disagreement within Government about whether the UK should remain a signatory of the ECHR.
What did the Committee say?
The report suggests that the Bill of Rights will not be significantly different from the HRA. This led the committee to question why we need a Bill of Rights at all. If the UK departed from the standards of the ECHR, it could damage the UK’s relationship with the Council of Europe and other EU states, as well as making cooperation regarding international crime in the EU more difficult. Repealing the HRA might also signal to countries with poor human rights records that not following the ECHR is acceptable.
The report emphasizes that the strength of the ECHR is its scope and the HRA’s requirement that every decision of public bodies must comply with its rights is crucial to its utility. While there is an EU Charter of Fundamental Rights that establishes certain rights for EU citizens, it only applies to public bodies when making decisions within the scope of EU law (see our explainer). If the Bill of Rights would restrict the right to bring legal challenges, there may be more challenges under the EU Charter, which could mean UK courts having to refer cases to the European Court of Justice to understand the exact scope of applicable EU law. This could entail greater delays in access to justice.
Problems in the devolved nations
The committee pointed out the concerns people in the devolved nations have with this proposal. It is likely that the Scottish Parliament would not give legislative consent, while the Welsh Government is “fundamentally opposed” to repealing the HRA. The Northern Ireland Assembly is also unlikely to consent to a Bill of Rights that would repeal the HRA, given the HRA’s importance as part of the Good Friday Agreement (which was crucial in the Northern Ireland peace process) – if there is no support from Scotland, Wales or Northern Ireland, it could end up an English Bill of Rights only.
Time to think again
All in all, the report was very critical of the Government’s proposed Bill of Rights, especially given its “seemingly limited aims” and the apparent risks to the UK’s global human rights reputation. The Committee’s conclusion couldn’t be clearer: the Government should “think again about its proposals for a British Bill of Rights”. We will find out after the EU referendum if ministers are listening.
Learn more about your rights under the European Convention on Human Rights and how they are protected by the Human Rights by clicking the links in this paragraph. Also take a look at our European Court of Human Rights infographic and our previous post outlining what’s going on with the British Bill of Rights.