32.The Secretary of State’s evidence to us was the Government’s first exposition on the public record of why a British Bill of Rights was necessary and of what it might contain.
33.The Secretary of State gave several reasons why the Government was seeking to propose a British Bill of Rights.
34.The first was that many of the constitutional reforms introduced since 1997 were being reviewed, as reflected, for example, in the Scotland and Wales Bills: “It seems only right that we should look at the Human Rights Act in that context because … it was introduced at a fair lick.”
35.Even though the UK played a role in drafting the ECHR, to the Government’s regret “human rights … have a bad name in the public square.” The Secretary of State said they had become associated with “unmeritorious individuals pursuing through the courts claims that do not command public support or sympathy.”
36.His greater concern, however, was that human rights were seen as a foreign intervention:
“More troublingly, human rights are seen as something that are done to British courts and the British people as a result of foreign intervention, rather than something that we originally championed and created and seek to uphold. Therefore, part of the purpose of a British Bill of Rights or a UK Bill of Rights is to affirm the fact that things like a prohibition on torture or a right to due process and an appropriate trial before a properly constituted tribunal … are fundamental British rights.”
37.He amplified these concerns in response to a further question:
“I do think that we can make changes that ensure that people recognise that these rights spring from our traditions, these rights are our patrimony and these rights can be given effect to in the courts in a better way and a more British way. If we manage to do that, it would be a gain for human rights domestically and internationally.”
38.The Secretary of State outlined three areas of reform—two specific, one more general—on which the Government would consult widely.
39.First, the Government was concerned that section 2 of the HRA, which requires courts to take into account judgments of the ECtHR when interpreting an ECHR right, weighed the balance too heavily in favour of the ECtHR at the expense of national courts. A review of section 2 had also been recommended by Labour politicians. When it was put to him that national courts did not follow ECtHR judgments as if it were a court of appeal, the Secretary of State said:
“We cannot necessarily rely on a future court or future judges to take this approach. If we believe, and if there is a broad consensus among the judiciary and the public, that it is appropriate to revisit section 2, then it would seem an appropriate safeguard to take.”
40.The Government had already flagged up the ability of British troops to operate effectively in a conflict zone as a second area for review. The Secretary of State said that this ability had been overly constrained “by a variety of laws and treaties. One question—it is an open question—is whether reform of the Human Rights Act could clear up some of that concern in order to ensure that our soldiers stand on firm legal ground while of course still being subject to appropriate legal sanctions.” One approach that had been mooted, although it would have to wait for the consultation paper, was that “there might be a derogation when British troops were engaged in conflict in the same way as France derogated from the ECHR to create a stage of emergency in the aftermath of the Bataclan atrocity.”
41.As a third area of reform, the Secretary of State highlighted what he called “glosses that could be put on the rights that are capable of being balanced.” He gave the example of freedom of expression: the UK placed more emphasis on this right and less on the balancing right to privacy than continental jurisdictions. So it “might be appropriate” for the Government to:
“firm up and make clearer the importance of freedom of expression. That might include everything from better protecting journalists’ sources … to helping to ensure that some of the erosions of freedom of speech, about which not just the media but others are worried, can be fought back.”
42.When we asked the Secretary of State whether these reforms could put the UK in breach of its legal obligations under the ECHR, he replied: “it could be a problem, but we are “not planning to derogate absolutely from any of the rights [in the ECHR]. At the moment, we envisage that all the rights contained within the Convention will be affirmed in any British Bill of Rights, but where rights are subject to potential qualification, we may emphasise the importance of one right over another.” Similarly, he explained that it was not the Government’s intention “to say that any individual right within the Convention no longer applies in the UK. We are going to consult on how some of those rights might be interpreted and weighed against each other, but that is a separate thing.” He qualified this, however, by saying the Prime Minister had not ruled anything out.
43.We asked the Secretary of State whether, given the limited changes to the HRA he had outlined, it was really necessary to repeal the HRA. He thought it was, “to ensure that we can make the changes I have mentioned”, and “to ensure we uphold parliamentary sovereignty … and make Parliament’s views clear on these issues”.
44.The principal motives for a British Bill of Rights are to restore national faith in human rights, and to give human rights greater national identity, rather than to enhance human rights protection in the UK. To achieve this the Government would review the extent to which national courts are bound to take account of ECtHR judgments, the application of the ECHR to the UK’s armed forces in conflict, and the extent to which different emphases—“glosses”—could be put on the competing interests within some of the qualified rights in the ECHR. The HRA would have to be repealed, rather than amended, to achieve these reforms.
45.The British Bill of Rights as outlined by the Secretary of State appeared a far less ambitious proposal than the one outlined in the Conservative Party manifesto, which we set out at the beginning of this report. He made no mention, for example, of reversing 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; nor of stopping serious criminals from using spurious human rights arguments to prevent deportation.
46.The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act—we note in particular that all the rights contained within the ECHR are likely to be affirmed in any British Bill of Rights. His evidence left us unsure why a British Bill of Rights was really necessary.
47.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.
48.In Chapter 8 we outline the evidence we received on the attitude to human rights in the devolved nations, which reveals a far more positive outlook than the view expressed by the Secretary of State.
49.We call on the Government to explain its grounds for concluding that, as the Secretary of State expressed it, the UK public sees human rights as a “foreign intervention”, and how a Bill of Rights would address this concern any more than the Human Rights Act does. Many of our witnesses considered that the Human Rights Act gave effect to the ECHR in national law in a way that respected Parliamentary sovereignty. The Welsh Government, for example, thought this a uniquely British approach.
23 See footnote 11.
26 . On 24 November 2015 France informed the Secretary General of the Council of Europe of a number of state of emergency measures taken following the large scale terrorist attacks in Paris, which it said may involve a derogation from certain rights guaranteed by the ECHR. Such derogations are permitted under Article 15 of the ECHR in times of public emergency threatening the life of a nation. There can be no derogation, however, from Article 2 (Right to life), Article 3 (Prohibition of torture and inhumane or degrading treatment or punishment), Article 4 paragraph 1 (prohibition of slavery), and Article 7 (No punishment without law). See: [accessed 27 April 2016]
28 Guaranteed by of the ECHR