Constitutional law update:

In October 2014, Chris Grayling, the then secretary of state for justice in the coalition government, published a document, Protecting human rights in the UK, in which he sought to make the case for the repeal of ‘Labour’s Human Rights Act’ and its replacement by a ‘new British Bill of Rights and Responsibilities’ (page 5). The HRA was objected to on several grounds, including that it ‘undermines the sovereignty of parliament, and democratic accountability to the public’ (page 4). A new Bill of Rights was heralded as the vehicle for ensuring parliament’s status as the ‘ultimate source of legal authority’ , and the Supreme Court’s central role in relation to the interpretation of the law (page 5).

The Conservative party’s proposals and/or the basis on which they were made provoked a fair degree of comment, much of it critical. With a general election looming, the Conservative party was entitled to identify human rights reform as an important policy area in which it had different views to those of its coalition partner, the Liberal Democrats. The Conservatives, therefore, fought that election on the basis of various manifesto commitments, including that, if elected, they would ‘scrap’ the HRA, and introduce a ‘British Bill of Rights’ . Following its unexpected outright election victory, the new government’s first Queen’s Speech was eagerly awaited. Given the vehemence of its opposition to the HRA, it was expected that a bill to repeal and replace the Act would be announced. Instead, the assembled parliamentarians were informed by Her Majesty that: ‘My government will bring forward proposals for a British Bill of Rights.’ At the time of writing, those proposals have yet to be published despite the fact that eight months have passed since the Queen’s Speech was delivered. Several recent events do shed some light, however, on the government’s thinking and progress in the present context.

The way forward

The first such event, or perhaps very brief chain of events, involved an exchange of letters between Michael Gove, secretary of state for justice and Lord Chancellor, and Harriet Harman, the newly appointed chairperson of the Joint Committee on Human Rights (JCHR) and the former acting leader of the Labour party. Since key functions of the JCHR include scrutinising all government legislation to ensure its compatibility with human rights (under various international treaties and conventions, including the European Convention on Human Rights (‘ the convention’ ) and the common law) and reporting to parliament where remedial orders have been made under HRA s10, it was not surprising in the least that she should write to the justice secretary, on 4 November 2015, confirming the JCHR’s interest in the government’s proposals. In the letter, Harriet Harman raised a number of matters, including the question of consultation. In her opinion, the standard 12-week consultation window amounted to a ‘very short time to deal with what is likely to be a complicated and contentious issue’ . She also drew attention to a degree of uncertainty which prevailed at the time regarding the lack of ‘indication as to whether the government intends to publish a white paper, draft clauses, or indeed a draft bill for pre-legislative scrutiny’ .

In the reply, sent on 27 November, Michael Gove indicated that the government was ‘committed to consulting fully on our proposals prior to the introduction of any legislation’ . By implication, therefore, draft clauses or a draft bill were being ruled out as the initial indication of government intentions. Furthermore, the justice secretary was - at the same time - both clear and unclear on the question of consultation. Thus, he was unclear about when the proposals would be published, preferring instead merely to state that they ‘will launch in due course’ , and that when they were the JCHR would be notified.

The justice secretary was, however, rather clearer about the length of the consultation. Thus, in simply committing the government to ‘adhere to the consultation principles published by the Cabinet Office’ , he appears not to favour treating the forthcoming consultation as anything unusual. Given the constitutional importance of the issue, however, there is a case for arguing that something more than a standard exercise is required, especially if the government’s proposals lack detail and specificity (see further below).

There is also the question of the government’s own delay over the issue. Assuming that it might be, in part, due to the by no means straightforward nature of the issues involved - and differences of opinion between senior ministers about how best they ought to be addressed - it seems neither fair nor reasonable to expect meaningful consultation with what Michael Gove referred to as ‘a wide stakeholder group’ to be achieved in a relatively short period of time. Rather, the length of the consultation period ought to be proportionate to what is expected from consultees. If they are encouraged to offer up their own solutions rather than merely comment on those put forward by the government, 12 weeks may not be enough time for them to do so.

When the justice secretary subsequently appeared, on 2 December 2015, before the House of Lords Select Committee on the Constitution (the second event), the chairperson, Lord Lang, recognised that it was not possible to ‘pry’ into the Bill of Rights issues given that ‘a lot of detail is not yet available’ (page 1). He did, however, raise the issue of the process since ‘this committee always regards it as very important that constitutional measures should have the widest possible consultation within government and then outside government’ (page 1).

In reply, the justice secretary noted that, previously, the coalition government had carried out what he referred to as ‘broad, consultative work’ on the issue, which had recognised a need for reform (page 1). In his opinion, the review formed ‘in some respects, the constitutional equivalent of a green paper’ (page 2). Michael Gove informed the committee that, at the time he was appearing before it, the government’s own consultation document was ‘being shared with colleagues within government so that they have an opportunity to refine it and contribute to its eventual formation’ (page 2). Once that process was complete, the next stage would be for the consultation to be taken‘through Cabinet Committee and Cabinet’ before publication. As at 2 December, therefore, it appeared that the consultation was still the subject of ‘individual conversations with individual members of the government, particularly the home secretary, the foreign secretary, the defence secretary and the secretaries of state for territorial departments’ (page 2). Moreover, despite the lack of detail about its content, the justice secretary explained that the ‘consultation document will contain a series of open-ended questions’ since the intention of government is to ‘secure the broadest possible consensus behind whatever change is considered desirable’ (page 2).

While such an aim is certainly laudable, the likely format of the consultation document calls into question why its publication is taking so long. ‘Open-ended questions’ by definition lack the firmness and certainty of well-rounded proposals. While such proposals are more conducive to a genuine consultation exercise, they take less time to formulate than more specific policy proposals. Does the delay over their publication, therefore, suggest significant differences of opinion within government regarding the best way forward? Or does it indicate that the present justice secretary lacks the enthusiasm and zeal of his immediate predecessor in relation to human rights reform?

Returning to the correspondence between Michael Gove and Harriet Harman, the latter raised several further issues with the former. Thus, Harriet Harman sought clarification concerning how the government would ensure, in the light of devolution, ‘that the views of the different parts of the United Kingdom are heard’ . She also sought confirmation from the justice secretary that ‘the government has officially ruled out withdrawing from [the convention]’, and that it does not intend to resile from its obligation, under article 46 of the convention, to comply with the judgments of the Strasbourg Court. In reply, Michael Gove assured Harriet Harman that ‘the implications of a Bill of Rights on devolution are being considered’ and that the government ‘will fully engage with the devolved administrations’ . Such engagement is, of course, vitally important given that a Bill of Rights will be a UK statute and that, as presently drafted, one of the limits on the legislative competence of devolved legislatures is that they do not have the power to legislate contrary to convention rights (see, for example, Scotland Act 1998 s29(2) (d)) . Presumably, a similar restriction will apply in respect of a Bill of Rights, thus further emphasising its important constitutional status.

On the issue of the UK’s continuing membership of the Council of Europe and the convention system, Michael Gove informed Harriet Harman that the government was ‘confident that we can make progress from within the [convention]’. If, however, that optimism were to prove to be misplaced, the justice secretary made it clear that the UK ‘would not stay in at any cost’ . In other words, like his predecessor, the current justice secretary has not ruled out the possibility of a UK withdrawal from the convention system. Thus far, however, the circumstances in which a withdrawal may occur are unclear. It remains to be seen whether the consultation document will address the issue and, if it does, how illuminating it will be. In Protecting human rights in the UK, in order to deal with concerns that Strasbourg decisions have sometimes led to unwelcome changes to UK law, it was stated that, in future, such decisions would be treated as ‘advisory’ only so that the final decision concerning whether they become the catalyst for legal reform would be a matter for parliament acting by way of resolution. If the Council of Europe were to accept such an approach, which seems highly unlikely, it would, at the very least, seriously erode the obligation that article 46 imposes on the signatories to the convention. Being able to pick and choose which Strasbourg judgments will (and will not) be complied with would clearly weaken the international system of rights protection under the convention. If such a privilege were granted to the UK, it would not be long before other states sought the same or a similar concession. In short, downgrading the status of Strasbourg judgments to ‘advisory’ would be a slippery slope. Although its harmful effects would be unlikely to be felt in the UK, where human rights protection would remain a concern, they would be felt in other European countries whose record before the Strasbourg Court is far worse than the UK’s .

It remains to be seen whether the consultation document will also advocate weakening the effect of article 46. If it does continue to press for this unachievable demand, there may be cause to question the underlying motive. Rather than being about rebalancing the relationship between the Strasbourg Court and the UK’s courts and legislature, it might look more like a strategy designed to enable the UK to exit the convention system on the basis of the Council of Europe’s proclaimed intransigence over an alleged point of principle.

Conclusions

In truth, the repeal and replacement of the HRA is not an urgent matter. Although it may be argued, as Michael Gove has, that the government was ‘elected with an explicit mandate to reform and modernise the UK human rights framework’ , it seems unlikely that, at the last general election, many voters cast their vote for a Conservative candidate primarily because of the party’s stance on this issue.

Delay is, therefore, not necessarily a bad thing in the present context; it is worthy of comment, however, since it seems at odds with the government’s pre-election intentions. Perhaps this is explicable simply on the basis that a new minister is at the helm, and that it takes time to get up to speed on an important and high-pro file policy which was not of his own creation. After all, if the justice secretary were later to be adjudged to have bungled human rights reform, his chances of securing an even more senior cabinet post under the present or a future prime minister would have probably lessened.

Even allowing for the possible influence of political ambition, it seems most likely, however, that the present delay signifies a realisation that repealing and replacing the HRA is easily stated but politically difficult to accomplish given the constitutional status of the Act and any replacement, and the various associated consequences, such as how this would impact on the devolution arrangements and what this would mean for the UK’s membership of the Council of Europe. Whenever the consultation proposals are finally published, and whatever form they take, it is to be hoped that the importance of what they seek to achieve will be properly reflected in the amount of time given for their consideration.

STOP PRESS…STOP PRESS…STOP PRESS…

Michael Gove appeared before the Lords EU Justice subcommittee on 2 February. Once again, he was unable to be very specific about the consultation’s content or publication date. Responding to the suggestion that any changes were likely to be merely a ‘gloss’ on current human rights provision, the justice secretary remarked that ‘folk will make up their own minds’ as to whether the changes are ‘marginal, radical or something in between’ . Although he was ‘at the mercy of the prime minister’ regarding publication, Michael Gove thought ‘there will not be too long to wait’ . Following publication, the justice secretary indicated that he would be ‘delighted’ to appear before the subcommittee again since there ‘will obviously be more meat on the table to pick over’ .