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British Bill of Rights faces legislative hurdles

05 February 2016

Richard Messingham outlines the hurdles faced by the government over the British Bill of Rights and considers speculation that it is being delayed by the wait for clarity on the EU renegotiations.


Last week the lord chancellor gave evidence to the House of Lords EU Justice Sub-Committee, as part of the Committee's inquiry into the potential impact of repealing the Human Rights Act on EU law.

Political commentators speculated that the lord chancellor would finally reveal the details of the long-awaited proposal that should replace the Human Rights Act 1998 with a British Bill of Rights. This did not happen and the consultation is yet to come. 

Although the official line is that the publication of the consultation has been suffering a setback because of some legislative hurdles such as, for example, the role of the Supreme Court, the press has speculated that Number 10 is waiting to have clarity on the EU renegotiations. 

The European Court of Human Rights is separated from the European Union, but in the public eyes a reform of the human rights law is linked to the wider EU renegotiations. The lord chancellor pointed out that human rights laws have a "bad name" with the British public, thus it is important to shift voters' perception that these are European rather that British laws. The British Bill of Rights could then be used to neutralise the leave campaign's argument that the UK is constrained by unwanted EU legislation. 

On Tuesday 2 February, European Council president Donald Tusk published the draft settlement that the prime minister has been negotiating over the last months. The prime minister now has two weeks, until the next Council meeting on 18 February, to convince other member states and British voters that the draft deal is good for Europe and Britain. Whatever the outcome, the British Bill of Rights could be a powerful weapon for the prime minister.  

Monday 1 February

Parliament

Labour Party calls for a NAO inquiry into criminal legal aid reform

Following the lord chancellor's decision to scrap the controversial 'dual contracting' scheme for criminal legal aid last week, shadow justice secretary Lord Falconer wrote to the National Audit Office (NAO) calling for an investigation into the cost that the failed reform may have for taxpayers.

He said: "Labour, practitioners and experts warned from the start that this was a flawed policy but the Tories pushed ahead regardless. It is welcome that the government has now finally scrapped its reforms but ministers are still refusing to come clean about how much public money was spent on this project. Labour is today calling on the NAO to investigate the cost to the taxpayer of this whole fiasco so that ministers can be held fully accountable".

Tuesday 2 February

Government

EU Renegotiation: European Council publishes a draft deal

European Council president Donald Tusk published the draft deal that the UK has been negotiating over the last months. These are the main objectives that the prime minister wants to achieve and the Council's draft response:

• Competitiveness - setting a target for the reduction of excessive regulation and extending the single market. The Council will set out its commitment to increase efforts to enhance competitiveness, assessing progress on a regular basis. 

• Sovereignty - allowing Britain to opt out from the EU's plan towards an "ever-closer union". This includes giving greater powers to national parliaments to block EU legislation. The Council recognises that in light of the United Kingdom's special situation under the Treaties, it is not committed to further political integration. It also reinforces respect for subsidiarity.

• Immigration - restricting access to in-work and out-of-work benefits to EU migrants. The Council reiterated the importance of the principles of freedom of movement and non-discrimination. 

• Economic governance - securing an explicit recognition that the euro is not the only currency of the European Union, to ensure countries outside the eurozone are not materially disadvantaged. The Council acknowledges the principles of mutual respect between the member states taking part in further deepening of the Economic and Monetary Union and those which do not.

Read Donald Tusk's letter

House of Commons

Written Answers: criminal duty tender

Following Lord Falconer's letter on Monday, shadow justice minister Andy Slaughter MP challenged the government asking what costs in each category of expenditure the Ministry of Justice incurred in relation to the proposed tender of criminal legal aid contracts.

Legal aid and courts minister Shailesh Vara MP said this information could only be obtained at disproportionate cost. 

Solicitors - pro bono

Dr Daniel Poulter MP asked the secretary of state for justice what discussions he has had with the attorney general on increasing the number of solicitors participating in pro bono activities. 

In his response, minister Shailesh Vara MP confirmed that the MoJ has had constructive discussions with the legal sector about how this can best achieved. Saying that the MoJ looks forward to continuing that dialogue with the legal professions, he noted that the lord chancellor "has been clear that those who benefit financially from our legal culture must do much more to help protect access to justice for all". 

Read the question and answer in full  

House of Lords

Lord chancellor to the British Bill of Rights - Committee hearing session

The lord chancellor, Michael Gove, and human rights minister Dominic Raab MP gave evidence to the House of Lords EU Justice Sub-Committee. The hearing session was part of the Committee’s ongoing inquiry into the potential impact of repealing the Human Rights Act on EU Law. 

Although there had been speculation that the lord chancellor would use the session as a platform to announce the long-awaited consultation on the British Bill of Rights (BBR), this was not the case. He was asked to clarify some of the issues that have been raised about the potential changes that a BBR could introduce into the UK's legal framework, including the sovereignty of the UK parliament, the impact on devolved administrations and the role of the Supreme Court.

The lord chancellor pointed out that Section 2 of the Human Rights Act 1998 may require a review. He suggested that a BBR may contain some derogations regarding British troops operating abroad. He also discussed a potential review of those rights which are capable of being unbalanced such as the importance of freedom of speech versus the right to privacy.

Read the transcript (PDF)

Wednesday 3 February

House of Commons

Written Answer: criminal duty tender

Shadow justice minister Andy Slaughter MP tabled a parliamentary question asking the secretary of state for justice how much his department has paid in legal fees in relation to criminal legal aid contracts. 

Minister Shailesh Vara MP pointed out that, to the end of December 2015, the Legal Aid Agency (LAA) incurred a total of £141,519 in relation to external legal fees associated with the criminal legal aid contracts. He said that, however, it is not possible to distinguish the cost of work relating to the criminal legal aid contracts incurred by the LAA's internal legal teams from other work undertaken. 

Read the question and answer in full

House of Lords

Immigration Bill 2015-16

The Law Society was mentioned in a House of Lords debate on the Immigration Bill 2015/16. Baroness Hamwee referred to the parliamentary briefing from the Law Society in her comments to Clause 34 of the Bill which is about the certification of human rights claims and the removal of in-country appeal rights: "There is no equality of arms and a perversity about this. As the Law Society has pointed out, the spouse of a national of any EEA member except the UK would retain a full in-country right of appeal … whereas the spouse of a UK national would have to leave the country".

Read the debate in full

Thursday 4 February

Nothing to report

Tags: politics | Westminster weekly update | Parliament

About the author

Richard Messingham is head of public affairs at the Law Society. He and his team are responsible for supporting the president and CEO to manage the Society's relationships with Parliamentarians, Ministers, civil servants and other major stakeholders of direct relevance to solicitors.
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