A bill of rhetoric

First glimpse of human rights reform suggests it is full of holes

Delivering the Queen’s Speech this morning, the Prince of Wales said:

Her Majesty’s government will ensure the constitution is defended. Her Majesty’s ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.

In its background briefing notes, the government summarised its intentions:

We will introduce a Bill of Rights to ensure there is a proper balance between the rights of individuals, our vital national security and effective government, strengthening freedom of speech, our common law traditions and reducing reliance on Strasbourg case law.

Purpose

Detailed notes on the bill tell us that its purpose is to:

• Introduce a Bill of Rights which will ensure our human rights framework meets the needs of the society it serves and commands public confidence.

• End the abuse of the human rights framework and restore some common sense to our justice system.

Main elements

What, though, will the bill say? Its main elements, we are told, are:

• Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK courts cannot interpret rights in a more expansive manner than the Strasbourg court.

• Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose “positive obligations” on our public services without proper democratic oversight by restricting the scope for judicial legislation.

• Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.

• Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.

Main benefits

And what does the government want its bill to achieve? Its main benefits are said to be:

• Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate.

• Curbing the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest.

• Reducing unnecessary litigation and avoiding undue risk aversion for bodies delivering public services.

• Tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.

Justification

To justify its proposals, the government offers just two “key facts”:

An estimated 70 per cent of foreign national offenders who had their deportation overturned in the last five years on human rights grounds in the First-tier Tribunal did so due to article 8 of the European convention on human rights (right to family life).

Between 2005 and 2011, the prison service in England and Wales faced successful legal challenges from over 600 prisoners on human rights grounds. This has cost the taxpayer around £7 million, including compensation paid out and legal costs.

Footnotes

The bill will apply to all parts of the United Kingdom.

This is the only bill in the legislative programme from the Ministry of Justice —although the department is also promising a draft Victims Bill that, if introduced and passed, would put the victims’ code onto a statutory footing.

Analysis

Let’s look more closely at what the government has told us today. Here are the key phrases:

HM Government will ensure the constitution is defended.

If the constitution is to be defended, it must be under attack. By whom? By opposition parties in parliament? By demonstrators or protestors? By judges or journalists? By the Council of Europe, which runs the human rights court? By the Russians? Or by the executive itself?

The government has produced no evidence that the constitution is currently under attack by anyone. Two recent attacks on the constitution were seen off by the courts — in the cases known as Miller 1 and Miller 2.

Ministers will restore the balance of power between the legislature and the courts

Restore it to what? Or to when? The courts have always accepted that their decisions can be overturned or modified by the legislature. The legislature has always accepted that its legislation can be interpreted by the courts. What is going to change? What needs to change?

The main elements of the bill are establishing the primacy of UK case law…

Primacy over the legislature? Certainly not: the government means primacy over Strasbourg case law. This must involve amending section 2 of the Human Rights Act 1998, which says a court “must take into account” decisions of the human rights court.

Simply changing “must” to “may” would allow the judges to keep UK case law in line with Strasbourg case law. But look at what’s next on the government’s shopping list:

Clarifying… that UK courts cannot interpret rights in a more expansive manner than the Strasbourg court.

What does “expansive” mean in this context?

Imagine a newspaper has been sued for publishing a private letter written to her father by a woman who has married into the royal family. The newspaper relies on its right to freedom of expression under article 10 of the convention. Imagine further that, on these facts, Strasbourg case law supports the public figure’s privacy rights under article 8 in preference to the newspaper’s article 10 rights.

So that it can lawfully publish the letter, the newspaper asks a court in London to enlarge its rights under article 10 by expanding on the interpretation favoured by the Strasbourg court. The English court says it would have wished to find in favour of the newspaper — but parliament has now told it that it cannot interpret rights in a more expansive manner than the Strasbourg court has done in the past.

So the newspaper has been thwarted by the new legislation. And yet “defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate” is just what the government says it is seeking to achieve.

Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning…

Who is to say what the “ordinary meaning” of legislation is? The courts — as now? Or the executive?

Constraining the ability of the UK courts to impose “positive obligations”on our public services without proper democratic oversight by restricting the scope for judicial legislation.

Courts make law. This is the “common law tradition” that the government says it wishes to promote in preference to Strasbourg case law. It is a fundamental and highly beneficial aspect of our justice system. But judges do not legislate.

Nor do judges act without “proper democratic oversight”. Parliament can overturn any decision a court may make. I don’t think the government is suggesting here that our judges should be elected — or even subject to confirmation by parliament. But we need to keep a close eye on any suggestion that judges act undemocratically.

The Strasbourg court has created positive obligations from time to time. For example, there is a positive obligation, arising from the right to life, to investigate a death for which the state may be responsible. That has been interpreted as requiring the police to issue an “Osman warning” to anyone whose life may be at risk.

The government thinks these warnings are being issued too widely. But that’s no reason for trying to stop courts imposing any positive obligations in future.

Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims.

Who is to say whether a case is “spurious”? The courts — as now? Or the executive?

The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.

This seems to mean that breaches of human rights will be permitted if each potential claimant suffers only a minor disadvantage. Shared misery should be no justification for widespread unlawful behaviour.

Ensuring that the courts consider the behaviour of the claimant when considering making an award.

This sounds like a return to the ancient maxim that a person who seeks an equitable remedy “must come with clean hands”. Like the previous proposal, it seems designed to exclude prisoners from bringing human rights claims. That may be convenient for the Ministry of Justice, which runs prisons and has to pick up the bill for breaching the rights of 100 prisoners a year. But how does it square with the rule of law?

Comment

You can see what the justice secretary Dominic Raab is trying to do with this bill. But it’s much harder to see how he is going to do it. If his legislation is passed, the judges will interpret it faithfully. But it’s very difficult to see how the legislation can be drafted to meet Raab’s aims.

Terms like expansive and spurious need to be defined if they are to have any meaning at all. So do concepts such as significant disadvantage and consider the behaviour. Promises to end abuse and restore common sense are political rhetoric that deserve no place in a briefing note of this sort.

By contrast, proposals to protect juries and restrict parole — which we were told only two days ago would be included — are not mentioned at all.

To conclude, I return to a criticism I have made many times before. This bill, if it ever gets off the ground, may tinker with the 1998 legislation. But it’s not, in any sense of the term, a bill of rights.