The UK, the EU and a British Bill of Rights Contents

The UK, the EU and a British Bill of Rights

Chapter 1: Setting the scene

A British Bill of Rights

1.In October 2014, the Conservative Party published a policy document, ‘Protecting Human Rights in the UK’, which set out its proposal to repeal the Human Rights Act 1998 and replace it with a new ‘British Bill of Rights and Responsibilities’. The 2015 Conservative Party manifesto followed this up, promising to: “scrap the Human Rights Act and introduce a British Bill of Rights”. This would “break the formal link between the British courts and the European Court of Human Rights”, and make the Supreme Court “the ultimate arbiter of human rights matters in the UK.”1 The intention of doing so was to:

“restore common sense to the application of human rights in the UK. The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights. It will protect basic rights, like the right to a fair trial, and the right to life, which are an essential part of a modern democratic society. But it will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society. Among other things the Bill will stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.”2

2.A Bill of Rights was not included in the Queen’s Speech in May 2015, but the Prime Minister confirmed in the House of Commons the Government’s intention to enact one:

“Our intention is very clear: it is to pass a British Bill of Rights, which we believe is compatible with our membership of the Council of Europe. As I have said at the Dispatch Box before—and no one should be in any doubt about this—issues such as prisoner voting should be decided in this House of Commons. I think that that is vital. So let us pass a British Bill of Rights, let us give more rights to enable those matters to be decided in British courts, and let us recognise that we had human rights in this country long before Labour’s Human Rights Act.”3

3.The Ministry of Justice leads on the Government’s human rights policy. The Lord Chancellor and Secretary of State for Justice, Rt Hon. Michael Gove MP, announced that a consultation on the Bill of Rights would be launched before Christmas 2015. In December, however, in evidence to the House of Lords Constitution Committee, he said that the consultation would be delayed until the New Year, following approval of a draft paper by the Cabinet. The consultation paper would “contain a series of open-ended questions, the aim being to secure the broadest possible consensus behind whatever change is considered desirable.”4

4.At the time of writing, a date is not known for the launch of the consultation.

The scope and purpose of the report

5.A striking feature of the Government’s statements on the proposed British Bill of Rights is that they address the UK’s relationship with the European Convention on Human Rights, but not its relationship with the Charter of Fundamental Rights of the European Union (the EU Charter). Logic suggests that if a Bill of Rights is to bring human rights under greater national control, it ought also to address the effects of the EU Charter, the other main source of legally binding international human rights norms in the UK. Yet no mention was made of the EU Charter in Government statements on launching a consultation on a Bill of Rights. Nor was reforming the EU Charter among the Prime Minister’s objectives in the recent renegotiation of the UK’s relationship with the EU.

6.We therefore decided to hold an inquiry to assess the impact of a Bill of Rights on the UK’s obligations under EU law, and, conversely, of those obligations on a British Bill of Rights. In Chapter 2 we explain the legal landscape in which the European Convention on Human Rights and the EU Charter operate. In Chapter 3 we set out the surprisingly limited ambition of the proposed Bill of Rights, as described in evidence to us by the Secretary of State for Justice. In Chapter 4 we assess the scope of application of the European Convention on Human Rights and the EU Charter in the UK. We consider whether the EU Charter would be relied on more heavily in UK courts if the Human Rights Act were repealed. In Chapter 5 we assess how effectively the European Convention on Human Rights and the EU Charter are enforced in the UK, and consider how both have been applied to prisoners’ voting rights. In the following Chapter we consider whether the EU Charter would have primacy over a British Bill of Rights. The evidence we received led us to consider whether the German Federal Constitutional Court was a model that our own Supreme Court might follow. In Chapter 7 we assess the impact of repealing the Human Rights Act on the UK’s international standing and ability to cooperate with other EU Member States. Finally, in Chapter 8 we consider how a Bill of Rights might be perceived in the devolved nations, where both the Human Rights Act and the EU Charter are constitutionally entrenched.

7.The objective of this report is to inform future consideration of a British Bill of Rights in Whitehall, Westminster, and the devolved administrations, and to inform public debate more generally. We ask the Government to pay particular attention to the report’s conclusions in the course of its consultation on a British Bill of Rights.

The conduct of the inquiry

8.We held eight evidence sessions with academic legal experts, legal practitioners, two former Attorneys General, a former Lord Chief Justice and a former UK judge in the Court of Justice of the EU. Our final evidence session was with the Secretary of State for Justice and Dominic Raab MP, Parliamentary Under Secretary of State and Minister for Human Rights at the Ministry of Justice. We are indebted to all our witnesses for the time and expertise they provided to our inquiry, and to all who submitted written evidence. Our conclusions are informed by their views.

9.The Members of the EU Justice Sub-Committee are listed in Appendix 1; their declared interests are also listed. The list of witnesses is contained in Appendix 2 of the report.

10.We make this report to the House for debate.

1 The Conservative Party, Strong Leadership, a clear economic plan, a brighter, more secure future: The Conservative Party Manifesto 2015, p 60: [accessed 18 March 2016]

2 The Conservative Party, Strong Leadership, a clear economic plan, a brighter, more secure future: The Conservative Party Manifesto 2015, p 73: [accessed 18 March 2016]

3 HC Deb, 8 July 2015, col 311

4 Oral evidence taken before the Constitution Committee, 2 December 2015 (Session 2015–16), Q 1 (Michael Gove MP)

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