The Conservative government has backtracked on any planned withdrawal from key provisions of the European Convention on Human Rights (ECHR) through the new draft UK Bill of Rights, while delaying consultation on the proposed law.
The draft, likely to be published next year, will instead include changes such as enshrining in statute the sovereignty of parliament to legislate against the ECHR in Strasbourg, and a claim that judges are not bound by rulings of the Strasbourg court.
However, according to Leon Glenister, a barrister specialising in public law at Landmark Chambers, it is not a surprise if the proposed legislation maintains the rights enshrined in the ECHR.
Speaking to Legal Business Glenister said: ‘After all, the UK is bound on the international level by their treaty obligations. An international promise has been made to comply with rights set out in that Convention. People often forget that the UK was one of the key participants in the drafting of the Convention.
‘From the present indications it looks like a lot of the provisions in the Human Rights Act (HRA) will remain. For example, the HRA has never required judges to follow the rulings of the European Court of Human Rights – they must only take them into account. In this respect the judge’s role will not change.
‘The press around the HRA has always been the problem rather than the Act itself. The potential change in legislation looks like more of a PR stunt by the Conservative government rather than a constitutional milestone.’
According to One Crown Office Row public law barrister Adam Wagner a key question which remains is what powers are given to, or taken away from judges. ‘If the government take away the power to read down legislation – interpreting legislation in a way that is compatible with human rights, then that would be a big change and would probably lead to more use of the declaration of incompatibility power,’ he added.
Before a Lords Constitution Committee today Justice Secretary Michael Gove said the challenge is whether or not to use the British Bill of Rights in order to create a constitutional long stop.
‘These are huge questions, they require debate and it’s because they require some thought as I say my original intention which was to publish the consultation document before Christmas has been put back and I expect any consultation document that we produce will be now produced in the New Year because the issue that the Prime Minister raises requires serious thought, consultation within government and then space afterwards to allow proper debate.’
UPDATE: On Thursday (3 December) Gove scrapped the controversial Criminal Courts charge and announced a review of all financial impositions in the criminal courts. The charges, which will be scrapped from Christmas Eve, had led to protests by magistrates in July and were labelled a ‘tax on justice’.
In a speech to the Magistrates Association Gove said: ‘It has become clear that while the intention behind the policy was honourable in reality that intent has fallen short.’