The bill
ImpACT International for Human Rights Policies, the London-based think tank, are concerned with civil liberties in the UK as well as beyond Britain. The British Government have proposed legislation which will repeal the Human Rights Act 1998. That important piece of legislation, which is regarded as sitting above other laws, incorporates the rights contained in the European Convention on Human Rights (ECHR) and makes them domestically enforceable in the UK, it requires British courts to consider rulings of the European Court of Human Rights. The 1998 Human Rights Act will, should the legislation be passed, be replaced with the British Bill of Rights Bill (separate to the archaic and antiquated but still partly in force Bill of Rights 1689).
On Wednesday 7th September 2022 we host a webinar with British Parliamentarians and scholars that have expressed concern, as well as positive views, as to the proposed changes to human rights legislation. In advance of ImpACT International’s symposium on that important topic, and in partnership with other interested organisations, we are analysing and championing human rights in the UK and will make sure that civil liberties are maintained.
Human rights have become a political football where one side uses it to undermine certain policies, and the other scents a victory in overturning a powerful piece of legislation that enables judicial activism
This new legislative proposal to reform the law relating to human rights is highly controversial. It is currently being debated in the House of Commons. The consultation which proceeded the new Bill largely, though not entirely, received submissions which argued that the Human Rights Act should be retained. Despite this the government of outgoing Prime Minister Boris Johnson has pushed ahead with his administration’s plans to transform rights in Britain. This is not surprising, not only does the Government have a large Parliamentary majority, the manifesto, the political prospectus upon which it was elected, proposed reforming human rights. He and his Justice Secretary, Dominic Raab, can therefore claim that they have a mandate to end the Human Rights Act 1998, and the European Court of Human Rights legal power to determine cases in the UK. Whilst the Government present it as reform some see their proposals as being of far greater importance.
A new course
Whilst technically a different matter to Brexit, the UK’s departure from the European Union, ending the justiciability of the Strasbourg based court is seen as the continuation of the controversial to some process of returning constitutional sovereignty to the political and legal institutions of the United Kingdom. That said the changes that may be brought by the British Bill of Rights Bill is not a complete revolution, the government intend to retain the European Convention on Human Rights.
Nevertheless, closing off the power of a court that is seen by human rights activists and large sections of the legal establishment as an important bulwark for freedoms that are fundamental is a contentious and provocative move. However, this change is the culmination of many years of debate in Britain and may indeed be a corrective measure that is intended to restore the balance between laws made my Parliament and the process of interpreting the meaning and legality of certain pieces by legislation by unelected judges. Some, particularly in Conservative Party circles argue that the pendulum had swung too far in favour of an activist legal establishment that was inventing laws, not interpreting them. This ‘problem’ has been exacerbated by the desire of some on the court to interpret the Convention according to present conditions, the so-called ‘living instrument’ doctrine. Allowing for creative interpretations of law has in the views of some made it over-mighty, striking down laws made by national legislatures. Given the political climate, the location of the European Court of Human Rights (ECtHR) has not helped its cause.
The justiciability of a foreign court based in Strasbourg ruling on human rights issues in Britain has somewhat cast a shadow over the fact that the basis for the ECtHR’s many rulings derive from a document largely drafted under the guidance of British jurist, and constitutional and legal scholar Sir David Maxwell Fyfe, later 1st Earl of Kilmuir. That text is known as the European Convention on Human Rights, formally called the Convention for the Protection of Human Rights and Fundamental Freedoms. Incidentally, Sir David Maxwell Fyfe, a prosecutor at the Nuremburg Trials and advocate for human rights, opposed Britain’s entry into the European Economic Community, which later became the European Union, the organisation which the UK voted to leave in 2016. Therefore, a robust defence of human rights and Brexit should not be mutually incompatible.
Britain once actively championed the non-EU Council of Europe, its Strasbourg court, and the Convention, much of its inspiration being drawn from the Universal Declaration of Human Rights. The intention was to export to some European countries the rights and freedoms, and Parliamentary democracy, for which Britain was known and had fought to defend in the recent Second World War. So it is surprising to some that Britain should now be seriously considering overhauling human rights. The advocates of modest change should see that just as human rights are British, they should also be universal, the controversy therefore mainly surrounds the location of where the interpretations of such inalienable rights is made and applied in legal cases, and the nationality of the judges making human rights rulings. However, their legal pedigree and experience is also an issue.
The political football
There is also the clash between the extent to which a national parliament’s decisions should guide human rights rulings or whether or not the ECtHR case law should be the primary benchmark that is used to guide the application of human rights when there are legal disputes. Some may suggest that the sometimes-subjective opinions of judges also has too much sway. This is a long running debate in Britain. Human rights have become a political football where one side uses it to undermine certain policies, and the other scents a victory in overturning a powerful piece of legislation that enables judicial activism. They also want to negate one of Tony Blair’s flagship policies, his government enacted the Human Rights Act. Indeed, the tussle between the different branches of the state predates even that Prime Minister.
On reading the reactions to the new Bill of Rights Bill, introduced to the House of Commons by the Lord Chancellor, we are reminded of an episode of the BBC anthology series, Screen Two: “The Law Lord” from 1992. In it, Anthony Andrews plays Lord Edwardes, the Lord Chancellor, contending with an ambitious Home Secretary seeking to bring the legal establishment to heel and enact his agenda via the courts, not the legislature.
So, whenever there are claims this Bill is some dastardly plan to take away rights, undermine democracy, or the rule of law, we are reminded of this fictitious scandal and remember that this would be what it looks like.
Protections
It is clear that the Government have the European Court of Human Rights in their sights. The Bill instructs that "no account is to be taken of any interim measure issued by the European Court of Human Rights" - including in the case of deportations of foreign national offenders and likely, the Rwanda policy. The halting of the deportations to Rwanda by an emergency decision of the European Court of Human Rights (ECtHR) meant that a policy enacted by the elected government and solidified by an international agreement could not go ahead: that is not the case anymore. Now, with the decision to reaffirm the Supreme Court's position as the interpreter of Convention rights.
The Bill, moreover, insists that greater weight be given to Parliament on balancing delicate human rights issues, meaning that the decisions of Parliament are to be emphasised and read in good faith.
There's more: it does not permit pre-commencement interpretations of Convention rights to hamper the work of public services. The view of Labour Peer and QC, Baroness (Helena) Kennedy QC, who criticised the Bill in the FT as '[marooning] society in a romance with the past' may be unfounded. Her objections to change perhaps do not take into account the fact that we are in an era of greater legal activism where politicised causes use the courts and the ECtHR – not the elected Parliament – to affect the law and succeed in their agenda. That cannot be right in a supposed democracy.
This does not mean judicial independence is curtailed either - interpretations can continue to be made and past interpretations by both British and Strasbourg courts will still stand; changes just mean that the democratically elected government's day-to-day operations cannot be hampered by past interpretations. This is especially important in 5(2)(e), in relation to matter of “primary legislation relating to supply and appropriation”, where governments require funds to continue running themselves.
For those who are keener to argue the Bill of Rights Bill threatens the European Convention of Human Rights the UK originally signed up to, they will also find the ECHR is instead bolstered. Particularly in the area of freedom of speech, where the courts have been instructed to "give great weight to the importance of protecting the right". However, Professor Gavin Phillipson of the University of Bristol criticised the Bill for not doing enough to protect free speech, writing on Twitter that in the Bill, free speech had ‘special importance’, but ‘not against the govt when it's trying to prosecute, deport, strip your citizenship or injunct you for publishing confidential information’. In his opinion, one could say there were too many caveats for freedom of speech to be consistently defended; there should have been a stronger case made for freedom of speech whether it was for or against the government.
The limits on the power of courts to allow appeals against deportation in Section 20 is another section designed to address expansive ECHR interpretations that seek to undermine Home Office policy. It is not a ‘power grab’ as some may allege, and neither is it inhumane. In fact, the bill bolsters and reaffirms the right to a fair trial as its bedrock.
In strengthening the ability of the government to enact its policies and putting the view of Parliament front and centre, the new Bill of Rights Bill doesn't undermine human rights and neither is it a Tory power grab. While much more can be done to review the European Convention of Human Rights and revise the ECHR in a way in which it retains its original essence of protecting individual rights and freedoms, the Bill of Rights Bill does much to curb expansive interpretations of the ECHR and the ability of the Strasbourg Court to be used as a back channel to undermine government policy; especially when British Courts contend there is no issue with said policy. Freedom of speech, however, deserves a stronger stand and in the person of Liz Truss MP it should have a stronger advocate at the head of the next government.
Controversies
Losing the Human Rights Act 1998 would perhaps not be a devastating blow to freedom of speech in the UK. In recent years this ‘right’ has been routinely attacked and often by the state using Section 127 of the Communications Act 2003 which outlaws improper use of public electronic communications network. This is a catch all under which many thousands are arrested each year or subjected to warnings from the British police. Therefore, reform should present opportunities to bolster this important right from which many other freedoms flow. Indeed, that is what is hoped. However, many will consider that this one small victory, which is yet to be firmly established, does not make up for the loss of other rights.
It has also been argued that the bill requires claimants to prove that any supposed breach of their rights caused them to suffer significant disadvantage before a court will even consider their case. The right to remain in the UK on the grounds of family life will also be lessened. It also reduces the power of courts to demand that public bodies proactively protect rights. Some may also object to the ending of claims relating to possible human rights breaches arising from the British military’s missions overseas.
There may be other implications to the government’s proposed changes. Any legal uncertainty will be a boon for lawyers who may bring cases at great public expense. And as the European Union increasingly demands that countries apply the same human rights standards as the bloc as a condition for entering into trade agreements with the EU, Britain’s abandonment of the ECtHR endangers future trade negotiations and may make it harder to resolve the dispute over the Northern Ireland Protocol.
ImpACT International for human rights policies, while accepting that the Bill will become an act, will make sure that any harm to human rights when it takes its final form will be mitigated and proportional.