The Lords and the planned human rights bill

As discussed in my post yesterday (Hold your horses Mr Gove! 18th October), the government is proposing to "fast-track" a  Bill through the Commons in order to legislate for a British Bill of Rights.  

Any Bill purporting to repeal the Human Rights Act 1998 (HRA) is certain to come up against considerable opposition in both Houses of Parliament.  Both Houses continue to have considerable numbers of lawyers in their ranks and many non-lawyer members are also vehemently opposed to repeal of the HRA.  This post takes a look at how the Parliament Acts and the Salisbury Convention might operate in the context of such a Bill.

Parliament Acts:



A Bill must pass through both the House of Commons and the House of Lords and receive Royal Assent before it becomes law.  This is subject to the Parliament Acts 1911-49 .  The Parliament Act 1911 removed the Lords power to veto a Bill, except one to extend the lifetime of a Parliament.  Instead, the Lords could delay a Bill by up to two years. The Parliament Act 1949 further reduced the delaying powers to one year.

Once a Bill reaches the Lords it could be delayed under the Parliament Acts and then become law without the agreement of the Lords.  This last occurred with the Hunting Act 2004.  It is worth noting that the Hunting Bill was mentioned in the Labour Party manifesto for the 2001 general election.  Whether it is desirable for a Bill as important as a Bill of Rights for the British people to become law without the agreement of BOTH Houses of Parliament is another matter but it could do so under the Parliament Acts.

Salisbury:

Opposition to a Bill to reform human rights is unlikely to fade away merely because there was a Conservative Party manifesto commitment but this fact would seem to trigger the so-called "Salisbury Convention" (or "Salisbury-Addison" as it sometimes known).  The convention is considered in some detail in a library note published by the House of Lords in 2006 - The Salisbury Doctrine.

Conventions are not laws but they are practices aimed, in the usual course of events, at smoothing the operation of Parliament and government.  The Salisbury Convention is to the effect that the Lords should not reject at second or third reading government bills brought from the Commons for which the government has a mandate from the nation.  In passing, it is difficult to see how such a convention could have applied to the coalition government 2005-10 but the general view is that the convention has survived that period.

The mandate?

The source of the present government's mandate is the Conservative Party election manifesto since that political party now forms the government.  Whether it truly has a mandate from the nation for its manifesto is debatable given the first-past-the-post electoral system (which established the government on a minority of votes cast) and the rejection of Conservatism within Scotland.  Nevertheless, despite such political arguments, the present electoral system has to be accepted as the method by which any mandate is established.

The 2015 Conservative manifesto stated:

"We will reform human rights law and our legal system ....... The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights.  This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK."

There isn't a vast amount here on which the Salisbury Convention can bite!  The government can claim that there is a mandate for repeal of the Human Rights Acts and its replacement by some alternative British Bill of Rights.   The problem with this is that the details of the British Bill of Rights were not spelled out in the manifesto so just what does any mandate extend to?  Two clues in the manifesto are - (1) breaking the formal link between British courts and Strasbourg and (2) making the Supreme Court the ultimate arbiter of human rights in the UK.

There is considerable vagueness about the meaning of those points.  Moreover, whatever understanding one reaches, many questions arise as to how they might be achieved.  Some legal facts will remain: (a) the European Convention on Human Rights will continue to bind the UK in international law unless, of course, the UK leaves the Convention; (b) Parliament will remain the supreme legislative body for the UK and may legislate to reverse any UK court decision.

For these reasons, the planned Bill will require anxious Parliamentary scrutiny.  It must not be a rushed affair.  As the barrister Adam Wagner said on Twitter - this is not a matter of burger and chips! When the Bill reaches the Lords, I submit that they should not feel constrained by the Salisbury Convention and they should consider themselves free to decide the matter for themselves bearing in mind only the crucial importance of human rights to the British people. 

Other links:

For further discussion please see Public Law for Everyone - Replacing the Human Rights Act, the House of Lords and the Salisbury Convention.

The Guardian 22nd May 2015 - Attempt to scrap Human Rights Act will not get past Lords, Falconer tells Gove

When did a Bill of Rights become something that could conceivably be 'fast tracked'? It's not a burger and chips http://t.co/2LduIrturU

— Adam Wagner (@AdamWagner1) October 18, 2015

Gove and Raab have a real opportunity to propose legislation that actually enhances rights protection. https://t.co/5QO0C4uWJM

— Dinah Rose (@DinahRoseQC) October 19, 2015