A bill of rights?
Raab’s reforms face a rough ride
This week, the government published around 700 pages about human rights, together with sundry press releases and associated documents. Dominic Raab, the justice secretary, spent an hour introducing his proposals to MPs on Tuesday and answering questions. A comprehensive assessment of the government’s plans would be premature, especially as the consultation period remains open until 8 March (and it has been a busy few days). But readers who are trying to work through the proposals may appreciate some initial guidance.
The main documents published this week were:
the report of the independent Human Rights Act review, chaired by the retired appeal judge Sir Peter Gross; and
the government’s consultation paper, called Human Rights Act Reform: a Modern Bill of Rights.
The Gross report
Logically, readers should start with the report that Gross and his panel sent Raab at the end of October. That helped inform Raab’s consultation paper. But those new to the subject may find the panel’s report more than a little daunting.
First, it is 580 pages long. That’s partly because it includes lengthy quotations from the evidence it received and partly because it is written rather like a judgment, reciting court rulings and arguments that were considered by the panel before announcing its conclusions.
It is also particularly difficult to read on the screen. The body text is tightly set in a thin sans font — it looks like Marsden Text Extended Light — with second references to cases in bold italics so that they shout at you from the page:
Abbreviations abound: not just ECtHR and HRA but also IHRAR, ToR and CfE (often italicised, for no particular reason). Quotations are drenched in a heavy grey wash and recommendations are reversed out (appearing in white on a coloured background).
A 27-page summary is slightly easier on the eye.
The Raab consultation
Let’s turn first to the government’s consultation paper. Fortunately, this is published in a standard format. An opening summary concludes by saying the government
will in due course put forward legislative proposals to parliament to revise and replace the Human Rights Act with a bill of rights.
This neatly encapsulates the ambiguity at the heart of these proposals. Is this a promise to “revise… the Human Rights Act”? Or is the government saying it will “replace the Human Rights Act with a bill of rights”?
It can’t do both. Presumably it wants to keep its options open. Or perhaps it just wants to keep us guessing.
Subject to that, though, paragraph 9 — though too long to quote here — provides a useful summary of what the government plans to do.
Moving on to chapter 1, we find an erudite but accessible history of rights in the constituent nations of the United Kingdom. Chapter 2 adds the international context. I suspect these chapters were written some years ago, when Raab first tried to reform the Human Rights Act as a junior minister.
In chapter 3, we are introduced to the case for reform. This paragraph sets the tone:
The Human Rights Act 1998 was a well-intentioned attempt to enhance rights protections in the UK. We accept that there was a case for setting out the substantive rights listed in the convention in our domestic law. Equally, we propose to leave in place those aspects of the Human Rights Act that have not proved problematic in practice. We believe, however, that the structure of the Human Rights Act is flawed in certain key respects, which have opened the door to the expansive role taken by the Strasbourg court being mirrored, and sometimes surpassed, in the UK.
But many readers will skip straight to chapter 4 on page 56, where the government sets out its proposals and lists the questions to which it is inviting answers. In the following sections I take a quick look at some — but by no means all — of the government’s plans to limit the scope of human rights challenges in the courts of the United Kingdom.
As expected, the government wants to amend section 2 of the Human Rights Act, which says courts in the UK “must take into account” relevant decisions of the human rights court in Strasbourg. But simply removing this provision would leave our courts with no guidance; and the government is concerned that the judges might go too far. What might parliament put in its place?
The Gross report makes a sensible recommendation: start with English law before considering Strasbourg decisions. But the government thinks this would give the human rights court too much power. It prefers an originalist position, encouraging courts in the UK to try to work out what the framers of the convention meant more than 70 years ago. This is unusual, to say the least.
In appendix 2, the government offers a couple of “illustrative draft clauses to give an indication of how some of the government’s preferred options in the consultation paper might appear in the bill of rights”.
But don’t be misled. These clauses have never crossed the desk of a parliamentary drafter — a lawyer who specialises in writing legislation. We can see that from references to “this Bill of Rights” where a drafter would write “this Act”.
And what are we to make of a draft clause like this:
The Supreme Court is the judicial authority with ultimate responsibility for the interpretation of the rights and freedoms in this bill of rights.
As far as the legal systems of the United Kingdom are concerned, this is no more than a statement of the obvious. But given that the government has promised that the UK will remain signed up to the European convention on human rights, it’s simply not true. The judicial authority with ultimate responsibility for deciding whether or not the UK has complied with the convention remains the European Court of Human Rights.
Trial by jury
This is a very curious section. It begins, anachronistically, by trying to link jury trial as we know it today to Magna Carta. It notes that jury trial is consistent with the human rights convention — as, of course, is non-jury trial.
And then it says this:
The government believes that there may be scope to recognise trial by jury in the bill of rights, given its significant historical place in our legal traditions, and the role it plays in securing the fairness of certain trials.
The right could apply insofar as trial by jury is prescribed by law in each jurisdiction, under the control of parliament for England and Wales, and of the Scottish Parliament and the Northern Ireland Assembly for Scotland and Northern Ireland respectively.
That’s all. No explanation about what difference this might make. Just a question desperately asking people to say why they think that qualified right to jury trial should be “recognised” in the bill of rights. What’s the point?
Rebalancing free speech and privacy
The government wants to strengthen freedom of expression (article 10 of the convention) at the expense of privacy (article 8). But it’s casting around for ideas on how best to achieve this.
Rebalancing claimants and defendants
Raab is proposing a permission stage for human rights claims. Claimants would have to show they have “suffered a significant disadvantage” before a claim could be heard in court. This is both curious and disturbing.
It’s curious because human rights arguments are often raised in claims for judicial review — and there is already a rigorous but flexible permission stage for these cases.
It’s disturbing because it suggests that unmeritorious claimants — prisoners, for example — would find it more difficult to bring claims.
There are several other proposals in the paper that would make it harder to bring claims against public bodies.
Section 3 of the Human Rights Act allows courts to “read down” legislation “so far as it is possible to do so” — effectively letting the judges rewrite acts of parliament to make them compatible with the convention.
The government’s view is clear:
We believe that section 3 has resulted in an expansive approach with courts adapting legislation. We think that a less expansive interpretive duty would provide greater legal certainty, a clearer separation of powers, and a more balanced approach to the proper constitutional relationship between parliament and the courts on human rights issues.
What, though, should be put in its place? Again, there are some illustrative draft clauses. Both require an “ordinary reading of the words used” that is “consistent with the overall purpose of the legislation” and is “compatible with the rights and freedoms in this bill of rights”.
Gross had recommended no change to section 3, apart from clarifying it. His report said:
The reality is that the high-water mark of alarm as to the use of section 3 hinges on a case now 20 years old. That does not suggest a pattern, still less an enduring pattern, of misuse of the section.
Further, relatively settled, restraining, guidance as to the use of section 3 has stood for at least a decade, so that statutory amendment to narrow the section itself risks uncertainty.
These points are not answered by the government. Instead, it says it is “minded to agree” with the panel’s recommendation that section 3 should not be repealed. As we can see, that understates the panel’s position to a disturbing degree.
Removing the power to overturn secondary legislation
As the law now stands, courts can, amongst other things, declare secondary legislation invalid or disapply a provision in regulations or orders.
The government is considering removing that power from the judges:
We wish to explore whether there is a case for providing that declarations of incompatibility are also the only remedy available to courts in relation to certain secondary legislation.
Section 6 of the Human Rights Act says “it is unlawful for a public authority to act in a way which is incompatible with a convention right”. But there are exceptions: public authorities will not be acting unlawfully
if they could not have acted differently because of a provision in primary legislation, or
if a provision in primary legislation cannot be read compatibly with convention rights.
The second exception, says the government, means the courts could still compel a public authority to act in a way that is contrary to the clear will of parliament.
The government wants to change this. The result would be that, where there was no ambiguity, a public authority would be able to defend its actions against a human rights claim on the grounds that it was giving effect to the clear intentions of parliament.
Where does this leave Gross?
Back now to the recommendations made by Gross and his independent panel. The government says it has “decided to consult on a range of the panel’s recommendations”.
By “range”, the consultation paper means “some, not all”.
The proper response to a report such as this would be for the government to list each of its recommendations alongside its responses: accept in full, accept in part, reject.
Instead, the government has cherry-picked proposals in Gross’s paper that can be seen as endorsing its position and ignored those it doesn’t like. I imagine that Gross and his panel must be pretty annoyed.
Unlike Lord Faulks QC, who examined judicial review for Raab’s predecessor and immediately pointed out that he had been misrepresented, Gross has so far kept his own counsel. His response to the consultation — whenever it comes — should make fascinating reading.
Rabb’s reforms face a rough ride in the months to come.
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Better still, as the festive season is upon us: