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 — … Continue reading The new Justice Secretary, Elizabeth Truss, on a British Bill of Rights
The Home Secretary, Theresa May, has argued in a speech staking out her position on Brexit that, although she is in favour of the UK’s remaining in the European Union, it should withdraw from the European Convention on Human Rights (ECHR). The purpose of this post is not to address the arguments for or against withdrawal. Rather, it engages with the quality of the Home Secretary’s underlying arguments. It concludes that however politically savvy May’s position might be, it does not withstand analysis. In particular, it turns upon legally specious distinctions between the EU and ECHR legal regimes, and is … Continue reading Theresa May’s case for withdrawal from the ECHR: Politically astute, legally dubious, constitutionally naïve
To say that the extent to which Article 6(1) of the European Convention on Human Rights applies to administrative decision-making is a vexed issue would be something of an understatement. That it is such a problematic area is thanks in large part to the somewhat chaotic case law of the Strasbourg Court in this area. That difficulty was highlighted by Lord Collins in Ali v Birmingham City Council  UKSC 8, who lamented the Strasbourg Court’s reluctance to enunciate principles which will enable a line to be drawn between those rights in public law which are to be regarded as … Continue reading Ali v United Kingdom: Article 6(1) ECHR and administrative decision-making
I briefly wrote yesterday about John Finnis’ recent lecture on judicial power. Although Finnis examines his topic through a lens that takes in far more than simply questions about human-rights protection, some of his fire is trained upon the European Convention on Human Rights and what it requires, or has been understood to require, courts to do. Indeed, by arguing that it is not wise to require or permit judges to exercise the essentially non-judicial responsibility of overriding or even of condemning legislation for its not being “necessary”, or for its “disproportionality”, relative to open-ended rights and the needs of a … Continue reading Philippe Sands’ Elson Lecture: Britain, Europe and Human Rights
This post is the last in a series of six updates for the 2015-16 academic year. The posts in this series are co-written by Mark Elliott and Robert Thomas, the authors of Public Law, published by Oxford University Press. Further information about Public Law can be found here. Our focus in these updates is on six key areas in which the constitution is undergoing, or is likely to undergo, change. We have taken as our reference point the outcome of the 2015 general election, and its likely implications for the future of the British constitution. In this final post in the series, we examine the Government’s proposals (such as they are … Continue reading Public Law Update #6: A British Bill of Rights?
The new Justice Secretary and Lord Chancellor, Michael Gove, gave evidence for the first time today to the House of Commons Justice Committee. We learned a little, but not a great deal, about the Government’s current thinking in relation to the replacement of the Human Rights Act 1998 with a British Bill of Rights. However, five points made by Gove are worth noting. First, he signalled that “proposals” will be published “in the autumn”. However, it is not clear from what Gove told the Committee whether those proposals will (in the first instance) be accompanied by a draft Bill. Second, … Continue reading Michael Gove, the Justice Committee and the Human Rights Act
The notion that concerns (rooted in Euroscepticism) about sovereignty can be addressed by means of legislation asserting the sovereignty of the UK Parliament appear to be gaining increasing traction. In a debate in the House of Commons 3 February 2016, the Prime Minister, David Cameron, said that although the sovereignty of Parliament was already assured, it is “something I’m keen to do even more on, to put beyond doubt that this House of Commons is sovereign”. This appears to echo an argument made in 2015 by Daniel Hannan MEP. Writing on the ConservativeHome website, Hannan argued that the UK Parliament should enact a “Sovereignty Act” to reassert its supremacy in the face of European Union law and the European Convention on Human Rights. Writing that EU law “overrides the law of our own democratic institutions”, his proposed solution to this perceived problem is that the UK should take a step that “requires no one else’s permission”:
We could amend Sections 2 and 3 of the 1972 European Communities Act to reassert the supremacy of Parliament. We could make clear that, in any conflict between Westminster and Brussels, Westminster has the final word.
Whether the UK Parliament should have the final word is a question of perspective. I do not propose to engage with that question here. However, analysed as a matter of law, Hannan’s proposal reveals three fundamental misconceptions that go to the heart of the debate concerning the UK’s relationship with both the EU and the ECHR. Given that that debate is likely to run for some time, it is as well to be as clear as possible about the legal groundrules. Continue reading “Why a Sovereignty Act makes no legal sense”