Michael Gove has been forced to concede that his proposed British bill of rights will remain subject to the primacy of European law, contrary to Conservative election pledges. Speaking at a House of Lords EU justice sub-committee, the Justice Secretary said that the rights of the long-awaited legislation, which he promised would be published ‘soon’, would align with, not supersede, existing EU rules.

Marking a break from the Conservatives’ election manifesto of last year, which pledged to ‘break the formal link between the British courts and the European Court of Human Rights and make our own supreme court the ultimate arbiter of human rights matters in the UK’, Gove confirmed that the government was ‘not planning to derogate absolutely from any of the [ECHR] rights’.

When pressed by the sub-committee’s chair, Baroness Helena Kennedy, the Justice Secretary said that the government ‘envisage that all the rights in the convention would be contained in the British bill of rights but there may be a difference of emphasis for some of them’.

Derogation from EU legislation
One of the changes Gove indicated would occur under the new legislation relates to increased protection of the military from human rights claims arising from actions abroad. Gove said: ‘There has been a widespread debate… about whether or not the way in which room for troops to operate effectively in a conflict zone has been constrained over-much by a variety of laws and treaties.’

‘One of the questions, and it is an open question, is could reform of the Human Rights Act clear up some of that concern in order to ensure that our soldiers are standing on firm legal ground, but of course they are still subject to appropriate legal sanctions?’

Such a move would potentially entail a derogation from some human rights obligations when soldiers are in conflict—an option France has exercised recently in the aftermath of the terrorist attacks in Paris in November. Gove did not confirm whether the suspension of certain rights would be permanent or temporary under the proposed British Bill of Rights.

Another change proposed to be brought in by the Bill will be a greater emphasis upon free speech where ‘it might be appropriate for us to firm up and make clearer the importance of freedom of expression including the protection of journalists’ sources’.

Just tweaking?
Baroness Kennedy suggested that the proposals put forward by Gove, which include providing more protection to British troops serving abroad and ‘firming up’ freedom of expression laws merely comprised the same rights currently contained within the Human Rights Act, with some ‘tweaking’ and an overall ‘gloss’. Barrister Lord Richard QC went further, questioning the Justice Secretary ‘what on earth’ he planned to repeal the existing act for, if the changes were so minor, and asking: ‘Is it really worth having all the legal eruptions and indeed this political row in order to achieve… a gloss?’

The news, coupled with the delays which continue to dog the bill’s publication, is unlikely to be welcomed by the Prime Minister. David Cameron had hoped that asserting the power of domestic courts over the European Court of Human Rights in Strasbourg ahead of this year’s planned EU referendum would bolster the case for the UK remaining in Europe.