Queen’s Speech

Lord Hope of Craighead Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I will concentrate on two themes in the gracious Speech. One was introduced by the declaration:

“The continued success and integrity of the whole of the United Kingdom is of paramount importance”


to the Government. The other is to be found in a passage that states:

“Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”

I hope that the noble and learned Lord, Lord Judge, will forgive me for quoting the sentence in full.

A little more needs to be said on the first theme, beyond the reference in the gracious Speech to the undoubted need to support the Belfast/Good Friday agreement. While we can all agree on that, I fear the Government are entering into a very contentious area when they go on to say that their support for that agreement and its institutions will include

“legislation to address the legacy of the past.”

I regret the absence of any mention here of the need to respect the position of the devolved Administrations—that was a missed opportunity. Their co-operation was severely tested during the last Session by the passing of the internal market Act and the Subsidy Control Act, both without the legislative consent of either Cardiff or Holyrood. Greater care needs to be taken, in the interests of the success of the whole United Kingdom, to see that this does not happen again this time.

As for

“legislation to address the legacy of the past”,—[Official Report, 10/5/22; col. 3.]

the Constitution Committee, of which I am a member, referred in a report published in January called Respect and Co-operation: Building a Stronger Union for the 21st Century to the Northern Ireland legacy proposals that the Government published in July last year. They included ending all

“judicial activity in relation to Troubles-related conduct”.

The Government’s aim, which was no doubt well intentioned, was to obtain a broad consensus. However, they signally failed to do so. One of our witnesses, the leader of the SDLP, said that the Government

“had achieved the rare feat of uniting every political party and victims’ organisation in Northern Ireland against its proposals.”

As we said in paragraph 148 of our report, there was

“a clear lack of consent on that issue.”

The original plans for the total amnesty have been abandoned, and new proposals are included in the draft legacy and reconciliation Bill—matters on which the UK Government are free to legislate as they wish. However, the concept of consent is of great constitutional importance in Northern Ireland—as it is in Scotland and Wales, but particularly so in Northern Ireland. I hope the Minister can assure the House that the Government will consult further to achieve as much consensus as possible this time before they proceed with these new proposals.

I recognise that the Government consulted widely on their proposals to introduce a Bill of Rights, but I cannot help thinking that this is a Bill that we could well do without. The manifesto commitment owes its origin to this Government’s dislike of the Human Rights Act. One might say that it was an obsession, and obsessions are rarely a good start to anything. It all seemed so simple: “Let’s restore the balance of power between the legislature and the courts by getting rid of that Act and replacing it with something else that tells the courts what to do”. We must be grateful that the Government will remain a party to the European Convention on Human Rights and that the individual right of petition to Strasbourg, which it sets out, will remain unchanged, with all that that means. The proposals here are directed entirely to the position in domestic law.

However, the more you look at it, the more obvious it is that there is a serious risk that they will do more harm than good. It does not seem to have been appreciated, for example, that the usual way that convention rights are enforced in Scotland is not through the Human Rights Act but through the Scotland Act, which sets out the limits of the powers of the Scottish Parliament and the Scottish Government. This enables incompatibilities to be dealt with in a way which is not subject to the same procedural routes which the Government wish to change. Further, the proposals are likely to lead to an increase in human rights litigation in view of the uncertainties that they will create, to the disadvantage of a wide range of public authorities which will be drawn into the courts, and to an increased demand on the courts themselves.

By making it harder for individuals to obtain a domestic remedy, the proposals are bound to increase the number of petitions to Strasbourg, to each of which the Government will have to respond, irrespective of which public authority was involved. Further, there are some rather odd and quite unnecessary proposals, such as to enshrine in legislation the right to jury trial, a system based on the common law, which works perfectly well in England and Wales. Except in the case of the most serious crimes, there is no absolute right to a jury in Scotland, so why should that situation be changed?

I am sure that many of us will work very hard to improve the Bill when it reaches us but, given the uncertainties and extra expense that it will create and the absence of any compelling need for it, I really doubt that it should come here at all.