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The Queen’s Speech and Judicial Power: Could the British Bill of Rights make things worse?

May 13, 2022

 

While economic issues were very much at the forefront of this year’s Queen’s Speech, the government has also laid out a substantial constitutional and legal agenda as part of its legislative programme.

The headline measure is the proposed British Bill of Rights, which would supersede the Human Rights Act. A perennial proposal most recently floated under David Cameron, the Bill’s stated aim is to restore “the balance of power between the legislature and the courts”. Among its main provisions are the establishment of the primacy of UK case law over that of the European Court of Human Rights, new limitations on courts’ ability to “read in” provisions that are not present in legislation, and a new burden on the claimant to prove they have suffered “significant disadvantage” before they can bring a human rights claim, with the aim of discouraging frivolous litigation.

Though the Bill of Rights is framed as an attempt to redress the balance between Parliament and the courts, there is a risk that it ends up disturbing the balance in favour of the latter to an even greater extent than is currently the case, as Policy Exchange’s Judicial Power Project has argued.  For instance, British judges are sometimes willing to go much further than their Strasbourg counterparts in the interpretation of the ECHR, though the Supreme Court under Lord Reed has been notably more restrained; the assertion of the primacy of UK case law over Strasbourg case law may thus backfire by encouraging even more judicial creativity.

Already the subject of much vitriol, the Bill is sure to face a challenging legislative process through Parliament. The Lords’ reaction to the Bill so far suggests that the Parliament Acts may well have to be invoked to overcome the upper house’s veto and ensure its passage—if there is enough time left in the legislative calendar of this parliament.

Northern Ireland is the other flashpoint of the government’s constitutional and legal agenda. A briefed plan to override parts of the Northern Ireland Protocol was hinted at, but not announced, in the Queen’s Speech. Though it involves complex issues of both domestic and international law, the problem is ultimately primarily a political one, and a political solution could yet obviate the need to introduce the override.

Finally, a Northern Ireland Troubles (Legacy and Reconciliation) Bill will limit the granting of immunity for crimes related to The Troubles to those who collaborate with a new Commission for Reconciliation and Information Recovery. The plans represent a watered-down version of the government’s earlier promise to “draw a line under the Troubles” by stopping all Troubles-related prosecutions, including those against British Army veterans, a U-turn which is sure to cause tensions on the backbenches.

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