The UK, the EU and a British Bill of Rights

SUMMARY and CONCLUSIONS OF THE HOUSE OF LORDS 12th REPORT .

FULL REPORT ACCESSIBLE HERE

SUMMARY

This inquiry was timed to coincide with the Government’s public consultation on a British Bill of Rights. The consultation was due to be launched in December last year, but in the event was delayed, and has still not been published. The Secretary of State for Justice’s evidence to us in the course of this inquiry was thus the first public statement in any detail of why the Government thinks a British Bill of Rights is necessary and of what it might contain.

This report assesses that statement, and considers the likely impact of a British Bill of Rights on three areas: on human rights litigation in national courts under the EU Charter of Fundamental Rights; on the UK’s EU legal obligations and international standing; and on the devolved settlements. A broad range of expert witnesses gave evidence to us, including two former Attorneys General, and our views are informed by that evidence.

The Secretary of State said in evidence that the Government’s two main objectives in introducing a British Bill of Rights were to restore national faith in human rights, and to give human rights greater national identity. The reforms the Secretary of State outlined were not extensive, however, and his evidence left us unsure why a British Bill of Rights was really necessary.

Doubts about the wisdom of introducing a British Bill of Rights grew with each evidence session we held. Many witnesses thought the current Human Rights Act incorporated the European Convention on Human Rights into national law in a peculiarly British way, and doubted more needed to be done to put human rights in a national context. Many thought that any restriction of the existing scope of rights under the Human Rights Act would lead to greater reliance on the EU Charter in national courts—a perverse consequence of a Bill of Rights that is intended to stamp national identity on human rights, particularly in view of the greater enforcement powers of the EU Charter. Many of our witnesses were deeply concerned about the effect of departing from the rights provided for in the Convention on the UK’s international standing, particularly among EU Member States, and on the UK’s ability to participate effectively in EU policies on fighting international crime.

We also heard a range of views on whether the Court of Justice of the European Union could be accused of extending the scope of EU law over national law through its judgments on the EU Charter. The weight of expert evidence was clear, and did not support such a conclusion.

The evidence we received from the devolved nations showed strong opposition to a British Bill of Rights and a belief that the repeal of the Human Rights Act would require the consent of the devolved legislatures before a Bill of Rights could come into force. Without this the Government might be left with an English Bill of Rights. The importance of the role of the Human Rights Act in Northern Ireland’s peace process was brought home to us in evidence we received from both north and south of the border.

Taken individually, the views expressed by witnesses to this inquiry raise serious questions over the feasibility and value of a British Bill of Rights of the sort described by the Secretary of State; taken together, they make a forceful case for the Government to think again before continuing with this policy. (….)

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

The Government’s case for a British Bill of Rights

  1. 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. (Paragraph 45)
  2. 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. (Paragraph 46)
  3. 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. (Paragraph 47)
  4. 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. (Paragraph 48)
  5. 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. (Paragraph 49)

The relative scope of the ECHR and the EU Charter

  1. The main strength of domestic human rights protection under the European
    Convention on Human Rights is its scope. By virtue of section 6 of the
    Human Rights Act, every decision of every public body, including courts,
    must be compatible with the Convention. That is not the case with the EU
    Charter. The EU Charter applies only to public bodies making decisions
    within the scope of EU law. (Paragraph 54)

7 . The application of the EU Charter is narrower than that of the European Convention on Human Rights for two main reasons: not all of its provisions have direct effect, and so they cannot be relied on directly by individuals in national courts; and it applies to Member States “only when they are implementing Union law”. (Paragraph 71)

  1. Understanding the meaning of “only when they are implementing EU law” is central to assessing the scope of the EU Charter’s application in EU Member States. (Paragraph 72)
  1. We found Professor Dougan’s evidence particularly helpful, and draw the following conclusions from it. The expression “implementing Union law” can be equated to “acting within the scope of EU law”, the test used by the Court of Justice before the advent of the EU Charter. A Member State can be said to be acting within the scope of EU law when it either implements EU law through national legislation, or it acts on the basis of EU law, whether implemented or not, or it derogates from EU law. While the test for acting within the scope of EU law is case-specific, and often legally complex, Professor Dougan concluded that the Court of Justice’s approach had been relatively predictable, and surprisingly consistent. (Paragraph 73)
  2. We heard a range of views on this issue, but the weight of evidence we received does not support a conclusion that the Court of Justice has sought to expand the reach of EU law over Member States through its judgments on the scope of the EU Charter. (Paragraph 74)

11 . That said, the inherent difficulty in defining the scope of EU law has given rise to considerable litigation. We think it is likely to continue to do so in the future. (Paragraph 75)

  1. The weight of evidence demonstrates that, were a Bill of Rights to restrict victims’ rights to bring legal challenges under the Human Rights Act, more challenges under the EU Charter in domestic courts would be likely. This, in turn, is likely to give rise to more references from UK courts to the Court of Justice seeking guidance on the scope of EU law and the provisions of the EU Charter. (Paragraph 80)
  2. The Government should give careful consideration to this likely consequence in deciding whether to introduce a British Bill of Rights. (Paragraph 81)

The enforcement of the ECHR and EU Charter in national law

14 . The common law would be unlikely to fill the gaps in human rights protection were the Human Rights Act to be replaced by legislation providing a lower level of protection. (Paragraph 83)

  1. The evidence we received is clear: the power of national courts under the European Communities Act to disapply a provision of national legislation that is inconsistent with the EU Charter is a more effective remedy than a declaration of incompatibility under the Human Rights Act. (Paragraph 95)
  2. A litigant can get compensatory damages for breach of EU law as of right; under the Human Rights Act damages are discretionary. (Paragraph 96)
  3. A challenge under the Human Rights Act may have to be litigated all the way to the European Court of Human Rights, in which case a significant delay will ensue. (Paragraph 97)

18 . We agree with the majority of our witnesses who said that the case of Delvigne is likely to lead to the UK ban on prisoner voting again being challenged, in relation to European Parliament elections. (Paragraph 113)

Would a British Bill of Rights be subject to EU law?

  1. The traditional view is that EU law has primacy over national law, and therefore that the EU Charter would have primacy over the Bill of Rights. (Paragraph 122)
  1. Several witnesses doubted this, however, citing instances in which courts
    have made it clear that there might not be an obligation to follow EU law
    if it conflicted with a significant constitutional principle of national law.
    (Paragraph 122)
  2. The model of the German Federal Constitutional Court, advocated by the
    Secretary of State as one our own Supreme Court could follow, appears ill-
    suited to the UK’s constitutional context. First, the German Basic Law gives
    primacy to EU law. Secondly, even though EU law can be overridden if
    inconsistent with the Basic Law, the German Federal Constitutional Court
    has yet to strike down EU legislation on this ground. Thirdly, the German
    Federal Constitutional Court has the power to strike down the legislation of
    the German Parliament if it considers it to be contrary to the Basic Law. We
    question whether this is a model the UK, with its constitutional principle of
    Parliamentary sovereignty, would want to follow. (Paragraph 123)

The impact of a British Bill of Rights on European Cooperation and the UK’s international standing

  1. We heard concerns that a British Bill of Rights that reduced the UK’s explicit commitment to the ECHR would undermine the UK’s standing within the Council of Europe and more widely. It could also put the effective operation of the European Convention on Human Rights, which requires all contracting States to respect its obligations, in jeopardy. The evidence of two former Attorneys General to this effect was compelling. (Paragraph 129)
  2. These concerns are heightened by the lack of clarity from the Government about whether the UK will remain a contracting State of the European Convention on Human Rights. We call on the Government to state explicitly whether or not it intends that the UK should remain a signatory to the ECHR. (Paragraph 130)
  3. We recognise that there is no formal legal obligation on an EU Member State to remain a party to the European Convention on Human Rights, but our evidence clearly suggests that any attempts by the UK to depart from its standards, or to withdraw from it entirely, would severely strain the UK’s relations and cooperation with other EU States. (Paragraph 138)
  4. The evidence suggests that, were the UK to depart from the standards of human rights currently recognised within the EU, the system of mutual recognition which underpins EU Justice and Home Affairs cooperation would be hampered by legal arguments over its application to the UK. (Paragraph 144)
  5. We urge the Government not to introduce domestic human rights legislation that would jeopardise the UK’s participation in this important area of EU cooperation in the fight against international crime. (Paragraph 145)

The impact of repealing the Human Rights Act in the devolved nations

2 7 . Human rights are entrenched in the devolution settlements of Scotland, Wales and Northern Ireland in a way that they are not under the UK’s constitution: acts of the devolved legislatures can, for example, be quashed by courts for non-compliance with the European Convention on Human Rights or the EU Charter. (Paragraph 180)

  1. The evidence we received from the Scottish and Welsh Governments demonstrates strong support for the role of the European Convention on Human Rights and the EU Charter to be preserved in those nations. The evidence we received from the Government of the Republic of Ireland and Professors Anthony and McCrudden went somewhat further in emphasising the vital role being played by the European Convention on Human Rights and the Human Rights Act in implementing the Good Friday Agreement. (Paragraph 181)
  2. The evidence demonstrates that the Scottish Parliament and Northern Ireland Assembly are unlikely to give consent to a Bill of Rights which repealed the Human Rights Act (we did not receive evidence on this point from the National Assembly for Wales). Were the UK Government to proceed without such consent, it would be entering into uncharted constitutional ter r itor y. ( Pa r ag r aph 182)
  3. The difficulties the Government faces in implementing a British Bill of Rights in the devolved nations are substantial. Given the seemingly limited aims of the proposed Bill of Rights, the Government should give careful consideration to whether, in the words of the Secretary of State, it means unravelling “the constitutional knitting for very little”. If for no other reason, the possible constitutional disruption involving the devolved administrations should weigh against proceeding with this reform. (Paragraph 183)

 

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