The United Kingdom might soon have its first bill of rights since the English Bill of Rights of 1688. On 14 December last year, the government published the much anticipated Independent Human Rights Act Review (IHRAR), which sets out the conclusions of a ten-month inquiry by an independent panel of experts into the operation of the Human Rights Act 1998. At the same time, the Ministry of Justice issued a consultation document, ‘Human Rights Act Reform: A Modern Bill of Rights’, the proposals of which bear no resemblance to the recommendations of the IHRAR (the consultation period ended on 8 March). Influenced, it seems, by Dominic Raab’s appointment as secretary of state for justice in the September reshuffle, the Ministry of Justice consultation document sets out a proposal that it describes, accurately, as ‘far-reaching’. By my count, 21 of the 29 questions it poses are not considered in the IHRAR. The whole document is founded on the decision to ‘replace’ the Human Rights Act with a bill of rights, something not considered by the IHRAR panel (which noted in passing that it detected no depth of support for one).
The gulf between the consultation document and the IHRAR is particularly surprising since the government hand-picked the panel members – led by the formidable Sir Peter Gross, a former lord justice of appeal – and drafted its terms of reference. The review received and analysed thousands of pages of evidence from legal experts, politicians, NGOs, the general public and the president of the European Court of Human Rights. It hosted roadshow events around the country. Its 423-page report addresses the options for updating and adjusting the Human Rights Act in a thorough and balanced way.
By contrast, the Ministry of Justice’s proposals are sketchy and half-baked. The major aim of the consultation, and the principal source of its deficiencies, is to reconcile irreconcilable objectives. On the one hand, the government is committed to continued membership of the Council of Europe, and the adherence to the European Convention on Human Rights (ECHR) that this involves. On the other, it doesn’t want to follow all the case law of the European Court of Human Rights in Strasbourg. Whatever one might think of the judgments of that court – and many are open to criticism – states cannot cherry-pick its case law.
The ECHR is an international treaty, and thus binding in international law. It specifies that the jurisdiction of the European Court of Human Rights covers ‘all matters concerning the interpretation and application of the convention’ and signatory states commit to abide by its rulings. It is not possible for a state to comply with the convention while not following the case law of the court. The UK and the other 46 states that have ratified the ECHR have agreed that the ECHR means what the court says it means.
The consultation nonetheless seeks – sometimes with barely disguised desperation – to find a way to achieve the unachievable. The Human Rights Act defines the rights to which it gives effect by reference to the convention: it provides a domestic remedy for breach of this international treaty. Replacing the Human Rights Act with a bill of rights is therefore an important component in a policy intended to loosen the UK’s ties to the convention and the Strasbourg case law. Defining domestic rights independently of the ECHR gives them an autonomous status: their meaning will be a matter of domestic law.
Strikingly, the consultation doesn’t canvass views on whether the replacement of the Human Rights Act by a domestic bill of rights would be a good idea, thus studiously avoiding the most important question of all. The government seems to believe that it won approval for this at the general election. The consultation document asserts that it has a ‘clear mandate’ for the proposals in its manifesto. It is correct that there was a clear manifesto commitment to ‘scrap the Human Rights Act, and introduce a British Bill of Rights’, but that was in David Cameron’s 2015 manifesto. Johnson’s manifesto promised only to ‘update the Human Rights Act’ – hence the IHRAR – not repeal it.
The consultation document gives very little away about what a new bill of rights might look like. How closely it might mirror the Human Rights Act is left tantalisingly unexplained. There is nothing wrong in principle with a new bill of domestic rights. It has been the policy of each of the three main political parties at various times over the past two decades and can be done consistently with the UK’s international obligations. The problem arises if it is used as a vehicle for dodging those commitments. The ECHR does not itself require that the treaty is incorporated into domestic law in any particular form, but Article 13 of the treaty expressly guarantees an ‘effective remedy’ for violations of the ECHR in domestic law. This means, as the court explained in its judgment on James v. UK (1986) that ‘the substance of the rights and freedoms’ set out in the ECHR ‘must be secured under the domestic legal order, in some form or another, to everyone’.
It follows from this that the ECHR must be given effect in domestic law. Indeed, the need to comply with this requirement was one of the main reasons for the enactment of the Human Rights Act in the first place. All 47 states that are party to the convention, including Russia, have incorporated it into domestic law.* Even countries with their own constitutional documents, such as Germany and Italy, have additional laws incorporating the ECHR. If the proposed bill of rights means that the convention would no longer be incorporated into UK law, it would set the UK apart from every other party to the convention and damage its international reputation.
The difficulties for the government run deeper still, because other international treaties commit it to the incorporation in full of the ECHR into domestic law. The Good Friday Agreement states that there will be ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights’. And the Brexit treaties commit the UK to ensuring that there is no ‘diminution’ in the rights protected by the Good Friday Agreement and affirm its commitment to its international obligations under human rights treaties.
Despite this, the majority of the questions posed by the consultation document are directed at finding ways of requiring domestic courts to take an approach different from that required by the case law of the Strasbourg court and currently applied under the Human Rights Act. The first questions are intended to show that domestic courts will not be bound to follow the rulings of the European Court of Human Rights when applying a bill of rights (‘The bill of rights will make clear that the UK Supreme Court is the ultimate judicial arbiter of our laws in the implementation of human rights’). Many of the subsequent questions seek ways to prompt or direct the domestic courts to interpret or apply rights more restrictively than they have done under the Human Rights Act.
The consultation asks how we can ‘make sure deportations that are in the public interest are not frustrated by human rights claims’ and canvasses views on how the UK could address ‘the impediments arising from the convention’ to tackling illegal immigration. These leading questions, like many of the others in the questionnaire, take it for granted that the current human rights framework is unsatisfactory, but none of the questions asks whether this is in fact the case or, if it is, what might be the scale and nature of the problems. No data are provided to support the government’s assertions. Such issues could have been investigated during the independent Human Rights Act review, but the panel was not asked to consider them.
To illustrate the supposed problem of deporting foreign nationals, the government provides two short case studies from reported case law (the third mentioned, ‘Case X’, is unreported and cannot be explored or verified). They relate to a Nigerian national convicted of offences of battery and possession of drugs with intent to supply, and a Turkish man convicted of grievous bodily harm. Tribunals held that neither man could be deported to his country of nationality because it would constitute disproportionate interference with his private life. The inference one is invited to draw is that the case law of the European Court of Human Rights requires our domestic courts to make rulings that are contrary to common sense.
An examination of the two reports puts the cases in a very different light. The Nigerian national, a 31-year-old man, was born in the UK and brought up here. He had not been to Nigeria since he was nine. As the tribunal held, he ‘knows only the United Kingdom’. The case was not about returning a migrant to his country of origin: his country of origin was the UK. The consultation document suggests, without mentioning these facts, that the ‘very significant obstacles’ to his integration in Nigeria were not ‘made out’ by the initial tribunal, though its judgment was upheld by the Upper Tribunal.
The Turkish national came to the UK aged 24, was given indefinite leave to remain, married a British national, brought up her child as his own and had two British children with her. He has five presumably British grandchildren. The family are close and all live in the same town in the Midlands. The tribunal found that the 56-year-old was ‘socially and culturally integrated in the UK’. Despite these facts, he would have been removed to Turkey had it not been for additional exceptional factors, which included evidence of the potentially devastating impact on his wife and the care he provided to one of his sons, who suffers from a serious chronic illness. The consultation document mentions only his ‘period of lawful residence and marriage to a British national’.
These examples do not disclose any failings in the operation of human rights law. On the contrary, they demonstrate the government’s opportunism in attempting to deport people convicted of crimes who are essentially British or fully integrated into British life, but hold foreign citizenship. The Ministry of Justice refers to the ‘protracted litigation’ that resulted from the Turkish national’s efforts not to be deported as an example of human rights law obstructing the government. But it actually shows how difficult it is to avert unjustified deportation – it can take years of litigation.
The government also thinks that freedom of expression has not been adequately protected. There are encouraging references to academic freedom and freedom of speech, but its main concern seems to be the right of the media to publish stories about people’s private lives. Again, the empirical basis for this concern is not identified. The case for reform is advanced primarily by reference to a recent Strasbourg judgment against Slovakia, in which the court held that the publication of a story about a deceased priest who had been convicted of child sex abuse breached his mother’s Article 8 rights (ML v. Slovakia). Again, the actual case report reveals a different picture. The court in ML recognised the ‘pre-eminent role of the press in a democracy’ and emphasised its role as a ‘public watchdog’. Any limitations on press freedom had therefore, it said, to be construed narrowly. On the facts of the case itself, the court upheld the right of the press to publish facts about the priest and his convictions taken from the records of the criminal proceedings, but held that the publication of additional ‘tawdry’, ‘sensational’ and ‘lurid’ allegations intended only to ‘titillate and entertain’ was not protected by the right to freedom of expression. Therefore, unless the government is seeking to defend the rights of the press to publish such tittle-tattle for commercial reasons, ML v. Slovakia does not support the case for reform.
Hovering unmentioned over this section of the consultation is the recent case of HRH the Duchess of Sussex v. Associated Newspapers Ltd. On 3 December last year the Daily Mail reported that it had been informed by ‘senior figures in government’ that a change in the law might be needed after the Court of Appeal upheld the High Court ruling that the Mail had breached the duchess’s right to privacy by publishing a private letter she had written to her father. Again, however, the case report undermines the government’s case. The Court of Appeal accepted the submissions of Associated Newspapers as to the test that had to be applied in balancing freedom of expression and the right to privacy and agreed with Associated Newspapers that the right to privacy did not have priority. The reason Associated Newspapers lost – as the Master of the Rolls, Sir Geoffrey Vos, explained – was that extensive extracts from the letter were ‘splashed as a new public revelation’ that went beyond Thomas Markle’s right to rebut public statements made by his daughter.
Both cases show that the press does not have a right protected by the convention to expose people’s private lives purely to titillate. That is the point at which the right to privacy prevails. The Ministry of Justice doesn’t succeed in demonstrating that the current model provides insufficient protection to freedom of expression. Yet to remedy these unsubstantiated problems, the government proposes a bill of rights that would direct the courts on the way to address human rights issues and to resolve the balance between competing rights. In effect, Parliament would steer the courts away from the positions taken in Strasbourg case law.
There are a number of significant objections to this approach. For a start, it is misguided in that generalisations embodied in legislation cannot address the many different situations that might arise. The Ministry of Justice suggests, for example, that the bill of rights could stipulate that the rights it enshrines ‘cannot prevent the deportation of a certain category of individual’, such as those convicted to serve a specified ‘term of imprisonment’. But, as the cases of the Nigerian and Turkish men make clear, not all cases can be treated in the same way. For many foreign national criminals, deportation will be justified, but for some it will not. One cannot have respect for individual rights without taking account of individual circumstances.
It is also proposed that courts should be instructed by the bill of rights that all Acts of Parliament are ‘determinative of Parliament’s view that the legislation is necessary in a democratic society’ or, alternatively, that courts should be mandated to give ‘great weight’ to Parliament’s view on what the public interest requires. The effect of such a law would be to create a legal fiction that would not always reflect reality. Consider R (Rusbridger) v. Attorney General. The former editor of the Guardian Alan Rusbridger sought a declaration that s.3 of the Treason Felony Act 1848, which criminalises the advocacy of republicanism, contravenes the right of freedom of expression. The then attorney general (in 2003), Lord Goldsmith, argued that it was unreal to suggest that the provision would be used and that Rusbridger faced no risk of prosecution. The House of Lords agreed and dismissed the claim. Had the Ministry of Justice’s proposal been law, the courts would have been required to treat s.3 of the 1848 Act as ‘necessary’ in a democratic society and the government’s defence would have failed.
Legislating in this fashion would also be likely to breach the ECHR because it would preclude domestic courts from providing an effective remedy for breaches of the convention. Not long before the Human Rights Act came into effect, in Smith and Grady v. UK (1999), the Strasbourg court held that the traditional form of common law judicial review, characterised by the test of ‘irrationality’, failed to comply with Article 13 because the threshold was so high that it prevented UK courts from assessing the facts and determining whether government action was proportionate. The devices suggested in the consultation that are intended to restrict the ability of the courts to consider proportionality by reference to the individual facts are vulnerable to the same objection.
What’s more, the proposals are likely to be counterproductive. In recent years the Strasbourg court has taken a fairly hands-off approach to judgments by UK courts and has even on occasion been persuaded by them to modify its approach. It is widely recognised that the UK courts’ detailed engagement with the principles and case law of the Strasbourg court has been an important factor in this. The enactment of a bill of rights in the form proposed in the consultation would sound alarm bells in Strasbourg and provoke intense scrutiny of UK law by the court. This is precisely the opposite of what the government wants to achieve.
In two areas where the Strasbourg court has been most activist and controversial – the recognition of positive obligations on states to protect rights and the extension of rights to state action overseas – the consultation simply asks for ideas, but doesn’t make any concrete suggestions about how the UK might avoid Strasbourg case law. Short of treaty amendment, the best option available is for it to persuade the domestic courts, through reasoned argument on the facts of specific cases, to interpret Strasbourg case law in a sensible and proportionate manner. That is likely to be accepted by the Strasbourg Court, which would be happy to focus on the bigger problems of human rights compliance in Europe.
A bill of rights would bring the opportunity to include rights not found in the ECHR. But the only additional right proposed in the consultation document is the right to a jury trial. And, given the variations in access to jury trial between Scotland and the rest of the UK, the proposal is a muted one. Jury trial would be protected only insofar as it is ‘prescribed by law’ in the different nations. This would not stop changes in the law taking away or limiting jury trial. Such a ‘right’ is no right at all.
We must do better than this. A bill of rights should, for example, include protection for same sex marriage, which is a fundamental and irreversible feature of UK society (the ECHR extends only to civil partnerships). There is a case for the protection and promotion of Welsh and Gaelic as well as British sign language. The experience of the pandemic has also advanced the case for recognising a universal right to national healthcare. The enactment of a bill of rights is not necessarily a bad idea, but it needs to take the ECHR as its starting point, not as an obstacle to be worked around.
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