Bill of Rights: good or bad for human rights?
By Simon Parsons >>
(13 September 2022)
The Bill of Rights Bill (the Bill), if enacted, will repeal the Human Rights Act (the HRA) 1998.
What will remain the same?
Section 2(1) and Schedule 1 of the Bill will create in UK domestic law ‘Convention Rights’ and these are more or less the same rights as created by the HRA. The UK will remain a party to the European Convention on Human Rights (the Convention) and will be obliged under Article 1 to secure to everyone within its jurisdiction the rights and freedoms in Section 1 of the Convention. It will remain unlawful for a public authority to act in a way that is incompatible with a Convention right unless statute prevents it from acting differently. Under the Bill the higher courts will be able make a declaration of incompatibility with a Convention right, but that will not affect the outcome of the case in the court making the declaration.
What will be changing?
First, no account domestically will be taken of interim measures of the European Court of Human Rights (the ECtHR), that will stop the ECtHR preventing migrants being sent to Rwanda.
Second, a higher threshold will be set for foreign national offenders seeking to challenge deportations based on Article 8 of the Bill: the right to a private life. The offender will have to show that deportation would result in manifest harm to a qualifying member of the offender’s family that is so extreme that the harm would override the paramount public interest in removing the offender from the UK.
Third, the Bill introduces a new permission stage for human rights challenges. This requires a victim of a human right violation to convince a court that they have suffered a significant disadvantage because of the violation. This imposes a significant barrier to human rights challenges – it remains unlawful for public authorities to act incompatibly with Convention rights but how will that be known if a challenge cannot be made?
Fourth, the courts will no longer be required to interpret all legislation (past or future) in a way that is compatible with Convention rights. This is the repeal of Section 3(1) of the HRA. Even when the words of an act of parliament are unambiguous, they can still be departed from under section 3 to achieve compatibility with Convention rights. It is arguable that parliament in section 3 (1) shared legislative sovereignty with the judges and the Bill is taking back that sovereignty. However, in fact Section 3 is rarely used. In the last eight years there have been 25 cases in which Section 3 was used and it is mostly used to address poor drafting issues or factual situations that fell within the intention of the legislation. So, Section 3 is not in fact a far-reaching instrument and to repeal it is unnecessary.
The government maintains that the Bill will strongly protect freedom of speech as clause 4 directs the courts to give ‘great weight’ to the importance of this freedom but not when there is an exercise of state power in criminal proceedings. This is aimed at the ‘Colston four’ who successfully argued that a criminal damage conviction for damaging the statute of Edward Colston in Bristol would be disproportionate, having regard to their rights to freedom of conscience and belief, freedom of speech and freedom of association. The government wants free speech to be valued only when it is not used against the state. The Colston four argument will no longer be available. The courts will not be able to check the state from infringing free speech which is very odd for a Bill of Rights as most such bills protect citizens from threats to free speech posed by the state. If this clause is enacted unchanged it will expand state power and will impair the ability to hold the government to account.
Strikingly clause 5(1) prevents UK courts from adopting post-commencement interpretations of Convention rights that would impose positive obligations on public authorities. The Bill advocates a move away from the current position that some rights can only meaningfully be enforced by way of positive obligations. This change will mean that in the future the state will only have negative duties not to certain things that do not entail the allocation of resources. But the point is that Convention rights sometimes cannot be effectively secured unless a positive duty is imposed even though that can involve significant amounts of resources. The background to this change is the desire of the government to limit the interpretation of Convention rights to literal readings of the rights based on the Convention text. This will mean that in the UK in the future the Convention will not be a ‘living instrument’ and therefore unable to adapt to social change.
The Bill’s clause 3 replaces Section 2 of the HRA with respect to the interpretation of Convention rights. It expressly states that the Supreme Court is the ultimate judicial authority on Convention rights and provides that the court must have regard to the text of the Convention right, and may have regard to the preparatory work of the Convention. This means the future interpretation of Convention rights will be limited to the meaning given by the original drafters of the Convention in 1950. This again denies the ECtHR’s ‘living instrument’ doctrine in which the meaning of Convention rights can change to take account changes in European society, culture, and values. It is a very backward step.
There is also a change to the separation of powers in the UK. The lord chancellor was the head of the judiciary, a judge, and a member of the government. As a judge his decisions set precedents that developed the law. The Constitutional Reform Act 2005 removed the lord chancellor as head of the judiciary and from his judicial role. Separation of powers in the UK was enhanced. But this is reversed by clause 40 of the Bill which is a Henry VIII clause as it gives the lord chancellor (as Secretary of State for Justice) the power by delegated legislation ‘to amend or modify any primary legislation or subordinate legislation so as to preserve or restore (to any extent) the relevant judgment of the court’. That is what the lord chancellor used to do as a judge, and it is a power not a duty so there is a discretion not to preserve or adopt a judgment of a court. Thus, clause 40 confers a judicial power on the lord chancellor. This diminishes the separation of powers in the UK.
The Bill is bad, bad for human rights and bad for the rule of law. The government maintains that the Bill will restore some common sense to human rights in the UK so that the framework will meet the needs of the society it serves. This dose of common sense is in fact a move towards authoritarianism because the Bill makes it much more difficult for people to enforce their human rights. More cases will go to Strasbourg.
(Courtesy: The Law Society Gazette)