Wednesday, 2 December 2015

Human rights proposals delayed ~ Lord Chancellor at the House of Lords Constitutional Committee

The Secretary of State for Justice and Lord Chancellor has given evidence to the House of Lords Constitution Committee and the filmed session is available for viewing.

Questions ranged over several important issues including the Lord Chancellor's Oath;  the dual role of Secretary of State and Lord Chancellor; Constitutional Reform; the Ministerial Code; Prisoner Voting and Reform of the Courts and Tribunal Service.

The most interesting aspect of the session was that Mr Gove said that there will be a Consultation Paper relating to Human Rights Reform and this will now appear in "the New Year" (no specific date offered).  The paper would contain a series of "open ended questions" and would seek as broad a consensus for reform as possible.

Mr Gove said that the aim was to strengthen protection of human rights but his view was that the reputation of human rights has been tarnished and come to be seen as protecting the "unmeritorious."  Gove went on to say that some particularly British rights (e.g. trial by jury for serious offences) and perhaps freedom of speech might receive greater protection in the proposed Bill of Rights.

The word "unmeritorius" is somewhat worrying.  Human Rights have to apply to all individuals within the State.  There cannot be exclusions though, in fairness, I do not think Mr Gove meant that there would be but the committee did not press him on this point.  There are certainly several instances of human rights receiving adverse publicity and the prisoner voting issue is perhaps a good illustration of this.

Why the delay?

The delay to publication of government plans for human rights protection is due to the Prime Minister asking whether the Bill of Rights might be used to create a constitutional court for the UK and, if so, might the Supreme Court of the UK be given that role.  Such a constitutional court would operate as some sort of "constitutional long stop" though it is far from clear from this session just how this will be either defined or operate.  It has the feel of the court being a buffer between the European Court of Human Rights (as well as the European Union / Charter of Fundamental Rights)  and the United Kingdom but isn't that the traditional role of Parliament?

Mr Gove, in response to questions, described this as an "enormously difficult" issue and agreed that it is harder to achieve it in the absence of a written constitution.  It was noted that some States with Constitutional Courts (e.g. Germany has the Bundesverfassungsgericht) do have written constitutions and are also Federal in nature.  The German Basic Law is of interest in this context.  (The UK is a "union" at present though devolution to Scotland, Wales and Northern Ireland has brought about some features of federation and the UK Supreme Court has a certain devolution jurisdiction).

An interesting session and well worth watching in its entirety.  Clearly, much of interest will follow in 2016.

Other links and notes:

a) Legal Wales 2014 Conference speech by Lord Neuberger (President of the Supreme Court) - The UK Constitutional settlement and the Role of the Supreme Court

b) Public Law for Everyone - The UK Supreme Court as a Constitutional longstop.

c) UK Supreme Court judgment in the High Speed Train case where the court noted various "constitutional instruments" and said (para 207):

"It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation."

Thinking back to the (halcyon*) days of 1972 it is hard to recall whether Parliament actually did envisage such possibilities.  More likely, it simply did not contemplate them. The European Communities Act 1972 (ECA) took the UK into what was then the European Economic Communities (EEC) or "Common Market" and which has since seen remarkable expansion into the present day European Union (EU).  The ECA enabled community law to be implemented in the UK and some of it would be directly applicable without further enactment.  That was the purpose of the ECA and if someone had asked a question in 1972 such as - "Could the Common Market abrogate the Bill of Rights 1689" - the answer have almost certainly been been - "Oh, of course not!"

A few years later, in  Bulmer (HP) Ltd v J Bollinger SA [1974] Ch 401 at 418–19, Lord Denning told us that we faced an "incoming tide" from Europe.  His prophecy was accurate.   Maybe the present government is looking to rebuild our coastal defences! 

* 1972 - the year included a 7 week miner's strike with a state of emergency; the Shrewsbury Pickets cases; Bloody Sunday; the burning down of the British Embassy in Dublin; the Staines air disaster; Idi Amin expelling Asians from Uganda.  Leeds United won the FA Cup; access credit cards came into use and the Courts Act 1971 sent into history the Assizes, Quarter Sessions and other courts and created the Crown Court of England and Wales.

1 comment:

  1. When human rights are put at the mercy of democracy, political reform and politicians' shims, the point is missed and they are not really treated as 'rights' at all. A 'right' is supposed to be a protection that is always there.