The obstacles to a British Bill of Rights

In Thursday’s Queen’s Speech, it was announced that “Proposals will be brought forward for a British Bill of Rights.” Commentators were quick to notice that this was almost exactly the same wording used in the previous year’s Queen's Speech, when it was announced that “My Government will bring forward proposals for a British Bill of Rights.”

Despite the Government’s initial commitment to produce a draft bill within 100 days of the General Election and subsequent commitment to introduce the new bill by summer 2016, no consultation documents or further details have been revealed. There are a number of likely causes of this delay, including the EU referendum, devolution and Parliament.

The EU referendum

The most immediate obstacle slowing the British Bill of Rights is the EU referendum, which was first announced in the PM’s Bloomberg Speech in 2013. It is understood that the Prime Minister believes that allowing the Secretary of State for Justice, Michael Gove MP, to present the argument that Britain should continue, but reform, the United Kingdom’s relationship with the European Court of Human Rights in Strasbourg while Gove simultaneously argues that the UK should withdraw from the European Union is too politically complicated. It is therefore probable that the Government will not publish any further details on the British Bill of Rights before June 23rd, 2016.

Devolution

The second major obstacle is caused by devolution. In October 2014, the Scottish Community Safety and Legal Affairs Minister Roseanna Cunningham stated that:

“The Scottish Government is strongly opposed to any attempt by a future UK Government to repeal the Human Rights Act or to withdraw from the European Convention on Human Rights. To do so would require the consent of the Scottish Parliament and, given our longstanding opposition, we would invite the Scottish Parliament to refuse this.”

On Thursday, this statement was reaffirmed by the Scottish Nationalist Party leader Nicola Sturgeon. Moreover, Ruth Davidson, the leader of the Scottish Conservative Party, has also indicated her belief that the Scottish Parliament would have the final say on any change to human rights.

With almost all major parties opposed to human rights change in Scotland, it is almost inconceivable that Holyrood would give consent to any repeal of the Human Rights Act. The situation is similar in Wales where Carwyn Jones, the recently re-elected First Minister, has pledged that the Welsh Government will do “everything it can to block repeal of the Human Rights Act”.

The questions of whether the devolved parliaments of the United Kingdom can block the repeal of the Human Rights Act and the creation of a British Bill of Rights is complex. Professor Mark Elliott, a Professor of Public Law at the University of Cambridge, explains that the UK Parliament is legally free to create and repeal whichever laws it desires, both for the UK as a whole and for any of the devolved nations.

While at first glance this may appear to allow Westminster to impose human rights change on Scotland and Wales, in practise the situation is much less clear. The UK Government’s relationship with the devolved nations is governed by the Sewel Convention. The Sewel Convention states, in essence, that the UK Government must obtain the consent of devolved parliaments if it wants the UK Parliament to legislate with respect to devolved matters. The Convention is not legally binding. However, disobeying the Convention would be politically difficult particularly in light of the recent Scottish independence referendum.

Whether the UK Government can repeal the Human Rights Act therefore amounts to a question of whether human rights is a devolved matter. Professor Christine Bell argues that because some aspects of human rights are partially devolved then “any unilateral repeal of the Human Rights Act by Westminster would violate the Sewel Convention”. Professor Mark Elliott takes a slightly different view. He argues that the Sewel Convention does allow the UK Government to repeal the Human Rights Act but that the Convention prevents the UK Government from introducing a British Bill of Rights in the devolved nations. This is because the UK Government has recognised that it will activate the Sewel Convention when it enacts legislation that “a devolved legislature could have enacted”. Whichever of these interpretations is correct, the Government’s plans for human rights reform are likely to be substantially curtailed by devolution. This is why Baroness Kennedy, Chair of the Lords’ Justice Committee, has warned that the proposals could “very well end up as an English Bill of Rights”.

Northern Ireland

Within the hurdle of devolution, Northern Ireland presents a distinct obstacle. First, it suffers from the same problems outlined above. Second, it faces numerous other obstacles due to the Good Friday Agreement. The Good Friday Agreement requires the European Convention on Human Rights to be incorporated into UK law. Professor Christine Bell has argued that any change to the Human Rights Act “could be considered a breach of the Good Friday Agreement”. Other observers believe that the UK could repeal the Human Rights Act but that the UK Government would need to simultaneously introduce new legislation that incorporates the European Convention into British law. At the very least, Northern Ireland is likely to significantly restrict the content of any future British Bill of Rights.

Parliament

The third major obstacle for the British Bill of Rights is Parliament. The Scottish Nationalist Party has indicated that it will oppose any repeal of the Human Rights Act - even if it did not apply to Scotland. Labour, the Liberal Democrats, the Green Party, Plaid Cymru and the Northern Irish Nationalist Parties will all, almost certainly, also oppose repeal. Outside of the Conservative Party, the Government is only likely to find allies within the Democratic Unionist Party and UKIP. This means that the Government will need to avoid a rebellion on its backbenches to pass the Commons. However, there are significant reasons to believe this is unlikely. The Human Rights Act has some significant defenders from across the Conservative Party. Even before the bill reaches Parliament there are likely to be significant divisions within the Cabinet. The Home Secretary has said that Britain should withdraw from the European convention and press reports suggest that other Cabinet members are sympathetic to her position. A relatively small rebellion would probably be sufficient to defeat the Government.

If the British Bill of Rights does make it through the Commons then it will face further obstacles in the House of Lords. The Lord’s abilities to delay legislation is usually restricted by the Salisbury Convention - which states that the Lords will not oppose the second or third reading of any Government legislation promised in its election manifesto. However, Professor Mark Elliott has argued that because of the significant constitutional changes involved in the repeal of the Human Rights Act and the creation of a British Bill of Rights, the Salisbury Convention may not apply. Even if the convention does apply, the Lords are likely to attempt to significantly delay the passage of the British Bill of Rights. The Conservatives do not hold a majority in the Lords and many of its members are former judges, solicitors or barristers who are likely to be sympathetic to the Human Rights Act.

Conclusion

In addition to these obstacles, there is also the question of what the British Bill of Rights should contain. This is contingent on whether the UK remains a signatory of the ECHR which, as aforementioned, is hotly debated in Cabinet. Bright Blue’s Associate Fellow, Rupert Myers, has proposed some recommendations in a blog this week. Bright Blue will be publishing a paper with further options soon.

Considering the many obstacles facing the creation of a British Bill of Rights it is perhaps unsurprising that the Government have failed to meet their deadlines. The Ministry of Justice is still committed to repealing and replacing the Human Rights Act. However, negotiating the significant constitutional and political obstacles is likely to be an ongoing and time consuming process.