Saturday, 23 July 2016

Human Rights and Legal Aid - what will the new government do?

We know that, as Home Secretary, Theresa May was not a fan - (her word not mine - read this) - of the European Convention on Human Rights which she saw as making it difficult to achieve her policy objectives.  She is on record as saying that the UK should leave the European Convention - Theresa May's speech on Brexit 25th April 2016.  We also know that the Conservative Party manifesto in 2015 promised a British Bill of Rights to replace what was described as "Labour's Human Rights Act."  The manifesto said (page 73):

"We will scrap Labour's Human Rights Act and introduce a British Bill of Rights which will restore common sense to the application of human rights in the UK.   The Bill will remain faithful to the basic principles of human rights, which we signed up to in the original European Convention on Human Rights."

When launching her bid for the Conservative Party leadership, Theresa May indicated that leaving the European Convention on Human Rights "divides people and has no parliamentary majority."  It may therefore be unlikely for the near future that the government will attempt to leave the ECHR (see Rightsinfo 30th June) but there can be no doubt that the British Bill of Rights agenda remains in place and this is demonstrated by the answer of Sir Oliver Heald QC to a question put by Harriet Harman MP - "We will set out our proposals for a Bill of Rights in due course. We will consult fully on our proposals."

This takes us no closer to knowing what their proposed "Bill of Rights" will contain than we were when things were in the hands of Michael Gove and Dominic Raab (post of 2nd February 2016).   Nevertheless, the new Ministers will have inherited their work.  Repeal of the Human Rights Act will inevitably accompany any British Bill of Rights and it would be surprising if the Gove/Raab work did not indicate the difficulties that will arise with Scotland and Northern Ireland of altering human rights protection.

The voting records of the new Justice Ministers on equality and human rights are of some interest and may be seen via They Work For You.  The website records that Elizabeth Truss has a mixed voting record on laws to promote equality and human rights and on 26th May 2016 she voted in favour of repeal of the Human Rights Act.  Sir Oliver Heald, Sam Gyimah and Phillip Lee are all recorded as having generally voted against laws to promote equality and human rights.

Whilst we must wait and see what the new Ministerial team actually does, there is some reason for concern over human rights protection under the new government.  Let us hope for a pleasant surprise  but this may not be likely from a government headed by a politician who once told the House of Commons that the government was "disappointed and appalled" by a decision of the Supreme Court on a human rights point?  The case was R (F) and Thompson v Home Secretary [2010] UKSC 17.

Turning (briefly) to the topic of legal aid.  Readers will be aware that the scope of civil legal aid was drastically reduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  When the Act came into force there was a Ministerial promise that matters would be reviewed after 3 years - The Guardian 31st March 2016.  As was inevitable, the Act has worked serious injustice and some of this is traced by retired Lord Justice of Appeal Sir Henry Brooke on his blog - Stories of Injustice.   On his Learned Friend blog, Nigel Poole QC looks at funding for legal representation at inquests and calls for this to be improved.

Lord Bach is chairing a Commission to examine Access to Justice - the Bach Commission.  Also see Labour Party Legal Aid Review.


  1. Thanks for the reference to Sir Henry Brooke's blog. Had not come across it, will visit again!