Doublespeak and puzzlement: Lords' Committee on HRA repeal

Posted by Sam Hawke on 10 May 2016

The Government’s plans for a new ‘Bill of Rights’ to replace the Human Rights Act (HRA) are in “uncharted constitutional territory”, says the new report by the House of Lords’ EU Justice Committee, published yesterday. But more than that, the report demonstrates that the Government had little coherent idea of its destination when it began.

The Committee set out many reasons why a British Bill of Rights is a bad idea. Here are seven of them.

1. It’s not necessary

The Committee’s first finding is one of sheer puzzlement. After hearing evidence from a range of constitutional experts and Government figures, including Justice Secretary Michael Gove, they were left “unsure why a British Bill of Rights was really necessary”.

However – as the Committee found – the confusion surrounding the proposals soon turned to anxiety. The Committee relates, “Doubts about the wisdom of introducing a British Bill of Rights grew with each evidence session we held”.

2. Our international standing will be damaged

As the Committee found, the plans risk undermining the UK’s international standing and jeopardising cooperation with other countries who may no longer feel able to trust the UK’s commitment to human rights worldwide.

3. Devolved nations don’t support it

But worries for the UK itself were even stronger. The HRA and the European Convention on Human Rights (ECHR) are not only embedded in the settlements for devolution across the entire UK, but part of the international accord that ended the conflict in Northern Ireland, the Good Friday Agreement. The Committee found that doing anything to downgrade human rights risks greatly destabilising these arrangements.

The views of Scotland, Wales, and Northern Ireland were also made clear. Representatives from each nation expressed “strong opposition” to the HRA’s replacement with any new ‘Bill of Rights’. As the Committee was left wondering, does the Government propose to legislate for a legally tortuous ‘English Bill of Rights’ or force a new arrangement on devolved nations who have expressly rejected it?

4. The Government can’t read the public mood

Indeed, the report reveals how the Government’s blinkered view of the HRA has left it unable to sense the mood of the public. Michael Gove gave evidence as to the belief of some – read: those in Government – of the HRA as a “foreign intervention”. But the evidence from across the UK looks quite different. The Welsh Government, for example, stated its view that the HRA amounted to an especially “British approach” to human rights, allowing for the enforcement of the ECHR in national courts whilst preserving the sovereignty of Parliament.

5. The Government hasn’t made clear its position on the ECHR

And the Committee challenged the Government’s double-speak on the ECHR. Whilst Theresa May has been the only Cabinet member to so openly call for the nuclear option of ECHR withdrawal, the Committee noted the marked “lack of clarity” over the Government’s position as a whole. It called for the Government to make its view known.

6. The common law is not a sufficient replacement

The Committee report also dispels the Government’s myth that the common law will seamlessly replace the HRA. In fact, were the HRA repealed, the common law would be “unlikely to fill the gaps in human rights protection,” as the Committee found. And – again contrary to the claims of Gove and others –there’s no ‘compensation culture’ requiring reform. The Committee found that damages awards under the HRA are actually “not common”, being entirely discretionary and only available where ‘just satisfaction’ demands it.

Assertions by the Prime Minister and Justice Secretary that the German Constitutional Court could act as a model for our ‘Bill of Rights’ were found to be ill-conceived. The Committee pointed out that the German Constitutional Court can strike down legislation of the German Parliament. Adopting such an approach would actually involve a loss of Parliamentary sovereignty, going further much than the HRA permits – since it does not allow courts to invalidate Parliamentary statute.

7. It amounts to massive constitutional change

Quoting Michael Gove’s own words whilst giving evidence, the Committee concluded by expressing the very real worry that the Government’s proposals to repeal the HRA amount to “unravelling the constitutional knitting for very little” and yet amount to constitutional change “of the greatest significance”.

Thus the Committee has added its voice to the chorus warning Government that there is simply no case for such a momentous change. As we await the Queen’s Speech next week, the Government would do well to listen.