Queen's Speech 18th May 2016 . Background Briefing Notes were issued by the Cabinet Office and see Briefing material for the House of Lords debate on the Queen's Speech - Home, Legal. Constitutional and Devolved Affairs 12th May 2016
The Queen's Speech contained these terse sentences:
"Proposals will be brought forward for a British Bill of Rights." "My ministers will uphold the sovereignty of Parliament and the primacy of
the House of Commons." [My emphasis].
The highlighted words raise the very fundamental question of POWER. Strong protection for human rights results in weaker EXECUTIVE power over the individual. "Sovereignty" is about power in relation to international bodies (e.g. the European Court of Human Rights). "Primacy" is concerned with the power balance between the House of Commons and the House of Lords.
Will the UK remain a signatory to the European Convention on Human Rights
letter (17th May) from Michael Gove to Harriet Harman
indicates that the government has not necessarily ruled out leaving the
European Convention on Human Rights in the longer term but there are no
immediate plans to do so.
Withdrawal from the Convention should be inconceivable and any suggestion to do so can only come from a government more interested in its own executive power than the rights of the people. The Convention is a key element of membership of the Council of Europe and the UK is a founder member of the Council. Withdrawal would risk that membership and would reduce the standing of the UK internationally.
There could be very serious repercussions in Northern Ireland because the Convention is a major element within the 1998 Belfast Agreement - a foundation stone of the "peace process." Withdrawal from the Convention would also undermine the devolution settlements for Scotland and Wales - see Keir Starmer QC article The Guardian 20th May.
British Bill of Rights:
Human rights are a vital and important aspect of modern law and many
beneficial changes to law have come about as a result - see Rightsinfo and ECHR Factsheets This blog contains many posts on human rights and explains the ways in which individuals have benefited as a result - e.g. Why we need our human rights - No. 2 - Right to Life
What would a Bill of Rights contain? The Gove- Harman letter informs us that - "the Bill of Rights will remain faithful to the principles in the ECHR." The word "principles" suggests that the Bill of Rights will not be mere replication of the European Convention and it suggests that the Human Rights Act 1998 will be repealed. The Background Briefing Notes state:
”The purpose of the Bill is to: Reform the UK human rights framework. The main benefits of the Bill would be: To continue protecting fundamental human rights. It would also better protect against abuse of the system and misuse of human rights laws and would restore common sense to their application. This will deliver on the Government's manifesto pledge to introduce a British Bill of Rights and reform human rights law. The main elements of the Bill are: These rights would be based on those set out in the European Convention on Human Rights, while also taking into account our common law tradition. The government will consult fully on the proposals when they are published in due course."
This only raises further questions such as - Which rights are regarded by the government as "fundamental" - Precisely what is meant by "abuse" of the system and "misuse" of human rights laws - What does "based on" the European Convention mean - How will the "common law tradition" inform the process.
Regrettably, much of this points to some form of system offering weaker protection for human rights within the UK than is available under the present law. Any proposals will have to be anxiously considered to determine precisely what will be protected and HOW will it be protected. The Human Rights Act 1998 contains strong mechanisms for protection and repeal of the Act (as seems inevitable) may well weaken protection. Weak protection for rights could result in the rights themselves being largely illusory.
The Briefing Notes assert that "Parliamentary sovereignty is one of the most fundamental principles of the constitution and the Government is committed to ensuring that it is upheld."
Nothing legally would be achieved by an assertion that Parliament is the supreme law-making body for the UK. It already is! That is not in doubt. Similarly, an assertion that British courts are not bound by decisions of the European Court of Human Rights would be otiose since that is already the position and is actually recognised by the structure of the Human Rights Act 1998.
The position vis-a-vis the law of the European Union is more difficult since national law has to give way to EU law where the two have taken contrary positions - European Law Monitor - EU Law: Does European Law override national law?
Primacy of the Commons:
The creation of primary legislation - Acts of Parliament - is governed by the Parliament Acts. Those Acts basically limit the powers of the Lords over most Bills to a delaying power and when a Bill is certified as a "money bill" (i.e. a Bill designed to raise money through taxes or spend public money) the Lords may not amend it.
In recent times, secondary legislation has been used extensively by government to legislate for its policy objectives. The Parliament Acts do not apply to secondary legislation.
In October 2015 the Lords voted to DELAY (not reject) the Tax Credits (Income Thresholds and Determination of Rates)(Amendment) Regulations 2015 - see Previous post 27th October 2015.
Angered by this, the government set up a review under the Chairmanship of Lord Strathclyde. The government is seeking to limit the powers of the Lords in relation to secondary legislation.
Strathclyde reported and, interestingly, the Public Administration and Constitutional Affairs Committee of the House of Commons is against implementation of his recommendations - Law and Lawyers 15th May.
As the elected Chamber of Parliament, the Commons should have primacy over monetary legislation but it is going too far to limit the powers of the Lords over ALL secondary legislation. That would be a major change to our constitutional arrangements - see - Secondary legislation and the powers of the Lords.
Secondary legislation receives far less scrutiny in Parliament than primary legislation and this leads to a major increase in executive power. It is, quite simply, a "power grab."
Interestingly, the cuts to tax credits was dropped in the Chancellor of the Exchequer's Autumn Statement.
The government appears to be seeking a weaker form of Human Rights protection than at present and they may seek to exclude recourse to European Convention rights in some situations such as the operations of British Forces abroad. This will be tested when their proposals are unveiled. The sovereignty question seems to be about enhancing power over institutions such as the European Court of Human Rights. The question of "primacy" is about increasing the power of the House of Commons (the business of which is mostly dominated by the executive) at the expense of the Lords. In these ways, important protections may be dismantled and executive power increased. The need for vigilance has never been greater.
These articles are of interest .....
The Conservatives need to accept the Human Rights Act, and move on - Keir Starmer QC MP - The Guardian 18th May.
The 2016 Queen's Speech and the Constitution - Professor Mark Elliott - Public Law for Everyone 18th May.
What did the Queen's Speech tell us about the Bill of Rights? - Rights Info 18th May