By Joanna George
Research Associate, University of Cambridge
The new Bill of Rights was formally introduced in the House of Commons last week. The Lord Chancellor and Secretary of State for Justice claims that the Bill will ‘strengthen domestic institutions’ and ‘affirms Parliament’s supremacy in the making of laws’. The contents within the Bill, as well as the approach taken to enact it, is constitutionally concerning and risks seriously undermining Parliament. The Joint Committee on Human Rights is right to flex its authority and reassert its Parliamentary role to Government.
On 22 June 2022 the Government introduced on a first reading in the House of Commons its new Bill of Rights which aims to ‘reform the law relating to human rights by repealing and replacing the Human Rights Act 1998’. On the same day it published its response to the four-month consultation held between December 2021 and April 2022 which saw over 12,000 responses submitted. Notwithstanding a comprehensive exercise of evidence gathering and assessments on a new Bill (which also included the Independent Human Rights Act Review and the Joint Committee on Human Rights (JCHR)), the Government has controversially chosen to progress with a Bill that goes against the grain of the responses submitted to it.
Significantly, the JCHR is composed of members from both the Commons and Lords in Parliament. It is a core UK institution designed to provide ‘democratic oversight’, a process which the Government allegedly wants more of, on matters relating to government Bills and their compatibility with human rights. Such is the JCHR’s concern over the Government’s approach and failure to make the case for the Bill’s aims that it sent a fourteen-page letter today to the Lord Chancellor and Secretary of State for Justice criticizing the Government and the Bill, with a full report to be published shortly.
Parliament’s role is emphasised in the Government’s consultation response, which states that the Bill will affirm ‘Parliament’s supremacy in the making of laws’ by requiring the ‘Secretary of State to lay any adverse Strasbourg judgments against the UK before Parliament’ (paragraph 128). It also asserts that repealing section 3 of the Human Rights Act (HRA) ‘will rebalance the approach to solving human rights issues in favour of Parliament’ (paragraph 70) despite the JCHR acknowledging that the HRA already respects parliamentary sovereignty. Further, section 19 of the HRA, which obliges the Minister responsible for introducing a Bill to make a statement as to whether or not that Bill is compatible with human rights, has been removed without explanation in the proposed Bill of Rights. So much for ‘democratic oversight’.
This highlights that MPs may be misled into thinking that they are voting for a Bill that empowers them and their responsibilities to Parliament. As previously noted by Fiona de Londras, how ‘institutional habits of Executive domination will be subject to corresponding adjustment’ is completely unaddressed in the Bill, suggesting that executive hegemony could be entrenched without parliamentarians being fully aware of it. This would restrict the ability of MPs to fulfil their critical checking function over the Government and prevent potentially significant human rights concerns – such as sending asylum seekers to Rwanda – from being addressed and removed before becoming enacted and enforced in law.
Failure to give Parliament the opportunity to carry out necessary pre-legislative scrutiny of the Bill and briefing the media about it before informing Parliament blatantly contradicts the Government’s own policy-position on the role of Parliament whilst also disrespecting the ‘prerogatives of elected lawmakers in Parliaments’ it claims to empower. By disregarding – as opposed to constructively engaging with – any views that challenge it, the Government risks further undermining its own authority which is already weak thanks to partygate and two recent by-election defeats. Having claimed that the Prime Minister’s recent confidence vote result enables the Government to ‘focus relentlessly on the issues that concern our voters,’ the Government’s consultation response is vague in clearly expressing who will actually benefit from the Bill. Surely a ‘modern’ Bill of Rights should apply equally to everyone and benefit those most in need of human rights protection and enhancement?
The Bill faces a notable number of hurdles before – and if – it reaches the final stages of becoming law. Based on today’s letter, the JCHR is likely to play an active role in challenging the Government. Additional pressure from an array of different legal, societal, and political actors including (but not limited to) the legal community, civil society, and devolved governments also risks delaying and suspending the smooth passing of the Bill. There is also a strong likelihood that the Bill will not easily pass in the House of Lords as the Bill in its current form goes beyond the Government’s manifesto commitment to ‘update’ the Human Rights Act 1998. This means that the House of Lords will not be bound by the Salisbury Doctrine which provides that Lords do not vote down major Government Bills that have been mentioned in the Government’s election manifesto.
By dismissing the need to ‘respect the authority of elected lawmakers’ from the outset of the Bill, the Government will incur more wrath from those opposed to the Bill. The Government’s current inscrutable approach is likely to diminish the Bill – a piece of constitutional legislation that has been waiting in Conservative Party wings in various forms since 2015 – but the Government still has the opportunity to rectify its course by seriously engaging with the JCHR and ceasing to participate in constitutionally counterintuitive behaviour.
