The new Lord Chancellor and Justice Secretary, Elizabeth Truss, gave evidence to the House of Commons Justice Committee earlier this week. She was questioned on a range of matters, including the Government’s long-awaited proposals for replacing the Human Rights Act 1998 with a British Bill of Rights. Truss’s answers to the Committee’s questions on this matter suggest that she is either playing her cards close to her chest or that the Government’s thinking is — putting the matter at its very highest — extremely embryonic. Indeed, the Justice Secretary’s evidence tells us nothing that we did not already know — although it certainly serves to confirm that the Ministry of Justice has a great deal of work to do before any proposals see the light of day.
The Chair, Robert Neill, asked Truss how proposals for a Bill of Rights would be brought forward. Would there, he asked, be a consultation document? Or a draft Bill? Or pre-legislative scrutiny? And had any of the parameters of the Bill of Rights been set? The Justice Secretary, in response, said merely that there would be thorough consultation, but that her department was “still looking at the parameters at this stage”. The implication, then, is that there are currently no parameters — an implication that was amply confirmed by Truss’s subsequent answers.
Having confirmed to the Committee that (as the new Prime Minister had already signalled) there would be no move to withdraw from the ECHR, Truss was asked how, in that case, a Bill of Rights would amount to any significant change to present arrangements. The UK would, after all, remain bound by precisely the same Convention rights as those to which the HRA currently gives effect. In response to this question, the Justice Secretary said only that:
There are changes that can be made, but this is really a matter that we need to develop in the proposals that we will be putting forward in due course.
Another member of the Committee, Alex Chalke, pressed Truss on this. What was the point, she was asked, of repealing the HRA if the UK was going to remain a party to the ECHR? The point, according to proponents of a British Bill of Rights, is generally understood to be in order to row back on what its critics consider to be the excesses of the HRA — in terms of the range of rights it protects, the strength of the powers it accords to judges, or the extent to which it links British to European human rights jurisprudence. Surprisingly, however, the Justice Secretary referenced none of these concerns. Instead, she suggested that the problem with the HRA is that it does not protect rights well enough, and that a Bill of Rights will be “better”:
We were members of the convention before the Human Rights Act. The Human Rights Act is a fairly recent phenomenon. It came in in 1998. The British Bill of Rights will protect our rights but in a better way. That is fundamentally what we are saying. There have been problems with the Human Rights Act. We have had the European convention on human rights. The problems have emerged since the Human Rights Act came in.
Chalke then asked Truss whether a Bill of Rights would allow people to enforce ECHR rights in UK courts, as they presently can under the HRA. Given that Truss had already indicated that a Bill of Rights would protect rights “in a better way”, it seemed that the only answer to Chalke’s question could be “yes”. But in fact the Justice Secretary told the Committee:
Those are precisely the kind of details that will be discussed in the proposal. We are in danger of discussing what the proposal might be. Let me be very clear. The Department is still working on it and we do not yet have the details of that proposal.
In other words, Truss was unwilling to rule out the possibility that a British Bill of Rights would preclude people from enforcing Convention rights in UK courts. If nothing else, that certainly serves to confirm that the “parameters” of the proposed new legislation remain fluid, to say the least. It also suggests that the Ministry of Justice may have a singular conception of what a “good” or a “better” way of protecting rights might look like.
Given that the Conservative Party has been promising to repeal the HRA for over a decade now, and has still not done so, it may be that the proposals — such as they are — for a Bill of Rights may never reach fruition. Equally, it may be that they ultimately amount to little more than the damp squib proposals formulated by the Commission on a Bill of Rights. But it may well be that the Government is intent on moving forward on this issue. The HRA is not sacrosanct, and kneejerk reactions that presuppose that any changes to it would be constitutionally anathema are unhelpful and wide of the mark. But, that said, the HRA is the closest thing that the UK has to a constitutional bill of rights, and any proposals that it be reformed, repealed or replaced should be approached with commensurate seriousness. If that is to happen, then much work plainly remains to be done.
Public Law for Everyone 