Still a strong case for a British Bill of Rights?

heald… I do not look at the process as not having achieved quite a lot. Over the recent period there have been some great moves forward, but there is still more to do.

These were the words of Sir Oliver Heald, Minister for Human Rights (Ministry of Justice), when commenting on the HRA and the case for a British Bill of Rights.

The Minister was appearing (evidence here) before the JCHR last month, concerning its inquiry on the ‘human rights implications of Brexit’. At the end of the session he made some comments about the HRA and the Strasbourg Court. Those comments are set out below. To my reading they amount to the Minister agreeing that, as far as he is concerned, significant progress has been made in the relationship between Strasbourg and the UK over recent years. This is a result of the ‘Brighton’ reform process, and shift in the domestic courts’ approach to section 2(1) HRA since 2009, and other matters.

We still have no real idea when the government will publish meaningful documentation on its proposed British Bill of Rights (see this RightsInfo analysis: ‘Plans To Scrap Human Rights Act Could Be Delayed Until After Brexit’).

The relevant extract of Sir Oliver Heald’s comments are set out below.

Joint Committee on Human Rights – Oral evidence: What are the human rights implications of Brexit? HC 695 Wednesday 23 November 2016

Q 21 …. Sir Oliver Heald

The European Court of Human Rights and the convention that underpins it are a very important part of our human rights protection, but there have been concerns about the way in which it has worked since the Human Rights Act was passed in 1998. I mentioned earlier that by 2006, when the Conservatives launched a policy for a British Bill of Rights—I was part of that launch—we pointed to a range of issues that had arisen with the ECHR and the way it had been implemented in Britain. Over the period of the past 10 years we have made considerable progress on some of those. The three issues where I think we have made some progress are that in 2006 we were very concerned that the European Court of Human Rights could not dismiss trivial and hopeless cases and had a huge backlog of cases that was building up. It was really rather inefficient in that way. There was not adequate subsidiarity and sometimes issues were being looked at which should have been dealt with at the domestic level There were other issues, such as the margin of appreciation perhaps not being adequate. So that was one package of measures about how the ECHR was working and its relationship with us.

There was a concern about the difficulty in deporting people to other countries because of how Article 8 operated. There was also a concern, which really came from a case in 2004, that the courts were just slavishly following ECHR judgments and not trying to develop an English jurisprudence around the ECHR. When the 1998 Act was going through I remember making a speech, along with many other people, about the problem that we could end up with a sort of very flat European jurisprudence. Over the period since 2006 we have seen real progress such as the Brighton Declaration which Kenneth Clarke secured, which has helped a lot on those administrative problems. Section 19 of the Immigration Act 2014 deals with the point about Article 8 and how it operates. Then more recently we have seen the courts taking a different approach and having much more of a dialogue with the ECHR. The case of Horncastle in 2009 was seen as something of a watershed in that regard. Although the process which started in 2006 of talking about a British Bill of rights has not resulted in a draft Bill yet—I apologise that we are not bringing one forward immediately, as we said we would—we will do so. But I do not look at the process as not having achieved quite a lot. Over the recent period there have been some great moves forward, but there is still more to do.

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