Bill of rights?

Or ragbag of restrictions?

The government is to publish its bill of rights bill later today. As we can see from the opening page I reproduce below, it seeks to “repeal and replace the Human Rights Act 1998”.

Many of the proposals to be introduced by the justice secretary Dominic Raab were trailed in the Queen’s Speech and I discussed them last month.

The real Bill of Rights (1689) is held in the parliamentary archives

An announcement this morning from the Ministry of Justice sets out some of the changes that the government wants to make. A slightly different version was sent to reporters under embargo yesterday. I have put quotations from that version in bold type below. My comments follow each proposal.

Freedom of speech and the views of elected lawmakers will be given greater weight.

We know that Raab wants the courts to give greater weight to freedom of expression (article 10 of the human rights convention) and less weight to privacy (article 8). In principle, that is unobjectionable. But the more our courts diverge from the case-law of the human rights court, the more defeats the UK is likely to suffer in Strasbourg.

The views of elected lawmakers should be given little or no weight by the courts. A case called Pepper v Hart established in 1992 that references to Hansard are possible when legislation is ambiguous. Apart from that, courts should be bound by what both houses of parliament decide rather than by what MPs think.

The bill will ensure courts cannot interpret laws in ways that were never intended by parliament and will empower people to express their views freely.

This makes little sense. The courts are not allowed at present to interpret laws in ways that were never intended by parliament. It’s true that section 3 of the Human Rights Act allows judges to interpret legislation in a way that is compatible with the human rights convention, a process known as “reading down”. But that was intended by parliament.

Empowering people to express their views freely seems to be a repetition of the pledge just mentioned.

At the same time, it will help prevent trivial human rights claims from wasting judges’ time and taxpayer money. A permission stage in court will be introduced requiring people to show they have suffered a significant disadvantage before their claim can go ahead.

How significant is “significant”? It’s essential that the courts have an unfettered discretion to decide this. At present, judges can choose to subsume an application for permission to bring judicial review cases into what’s called a “rolled-up” hearing. This allows courts to filter out hopeless claims while ensuring that important cases are not delayed.

The bill will also reinforce in law the principle that responsibilities to society are as important as personal rights. It will do this by ensuring courts consider a claimant’s relevant conduct, like a prisoner’s violent or criminal behaviour, when awarding damages.

As far as I know, the courts do this already. If a prisoner is injured as a result of that prisoner’s own conduct, an award of damages is unlikely.

The bill will make clear that the UK Supreme Court is the ultimate judicial decision-maker on human rights issues and that the case law of the European Court of Human Rights does not always need to be followed by UK courts.

The European Court of Human Rights will remain the ultimate judicial decision-maker on human rights issues because the UK will continue to be bound by the human rights convention and individuals will still be able to challenge the UK at the court.

Section 2 of the Human Rights Act 1998 says that “a court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment… of the European Court of Human Rights”. The bill may repeal this provision or perhaps replace “must” with “may”.

Again, though, the more our courts diverge from the case-law of the human rights court, the more defeats the UK is likely to suffer in Strasbourg.

The bill of rights will make it easier to deport foreign criminals by allowing future laws to restrict the circumstances in which their right to family life would trump public safety and the need to remove them.

It is perfectly possible for parliament to pass laws at the moment that are incompatible with the human rights convention. Why does parliament need to pass a law now to allow it to pass a law in the future? The answer must surely be that the government wishes to achieve its objective by secondary legislation, made under powers delegated to ministers. This is undesirable because delegated legislation cannot be amended and receives less scrutiny.

It will mean that under future immigration laws, to evade removal a foreign criminal would have to prove that a child or dependent would come to overwhelming, unavoidable harm if they were deported.

If such a change is needed, it should be made by primary legislation.

As a result, any new laws will curb the abuse of the system that has seen those convicted of hurting their own partners and children evade removal by claiming it would breach their right to family life in the UK.

The courts can surely be trusted to decide whether an applicant’s claim to family life is justified or not.

The bill will boost freedom of the press and freedom of expression by introducing a stronger test for courts to consider before they can order journalists to disclose their sources.

Courts do not generally order journalists to disclose their sources at present. I cannot see what difference a stronger test would make.

The bill will prevent courts from placing new costly obligations on public authorities to actively protect someone’s human rights and limit the circumstances in which current obligations apply, for example, police forces having to notify gang members of threats towards them from other gangs.

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.

The bill will insulate the government’s plans to increase the use of prison separation centres against legal challenge from extremist offenders claiming a “right to socialise”.

How will the bill define “extremist offenders”? Why should all offenders in this category lose privileges? How can legislation “insulate” government action against legal challenge? Why should claimants be denied access to the courts in cases where the government may have acted unlawfully?

The bill will recognise that trial by jury is a fundamental component of fair trials in the UK.

Is it? The vast majority of criminal trials are conducted without juries by lay magistrates or district judges — and their equivalents in Scotland and Northern Ireland. Aren’t those trials fair?

And why does the bill need to “recognise” trial by jury? Is it under threat? I discussed this with Raab in March and reported his responses at the time. I remain none the wiser.

The bill will prevent human rights from being used as a way to bring claims on overseas military operations once alternative options are provided by upcoming legislation.

It’s not clear whether this is intended to take rights away from members of the armed services or from those who are treated unlawfully by them.

It appears to envisage new primary legislation. Why not wait until that legislation is before parliament?

The bill will confirm that interim measures from the European Court of Human Rights under rule 39, such as the one issued last week which prevented the removal flight to Rwanda, are not binding on UK courts. 

That would involve a breach of international law.

The grand chamber of the European Court of Human Rights held in 2005, and has subsequently confirmed, that states parties are under an obligation to comply with interim measures. The court held that, by failing to comply with measures indicated under rule 39, a state had not complied with its obligations under article 34 of the convention to allow individuals to bring claims to the court. It was also a breach of the state’s formal undertaking in article 1 to protect the rights and freedoms in the convention.

This will be achieved while retaining the UK’s fundamental commitment to the European Convention on Human Rights.

Legislation passed by parliament cannot override the UK’s treaty obligations. Unless there is an emergency threatening the life of the nation, a party to the human rights convention cannot derogate from its obligations under the human rights convention. The UK has agreed to secure to everyone within its jurisdiction the substantive rights and freedoms it includes. Failure to comply with interim measures is a failure to do this.

The bill

These comments are based on what the Ministry of Justice has chosen to tell us so far. It will not be possible to assess the true significance of this bill until it is published on the parliamentary website later today.

However, someone has slipped me a copy of the first page:

We can see that the “Bill of Rights Bill” — which if passed will presumably become the Bill of Rights Act¹ — begins with an introductory clause of the sort that we have recently seen in the Northern Ireland Protocol Bill. But this one includes phrases that are so vague as to be almost meaningless:

This Act clarifies and re-balances the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament…

What is that supposed to mean?

It then “affirms” the existing law.

What’s the point of that?

This is all I have so far. But it does not bode well.

Update 1520: the bill is now published.

Update 1830: nice to be noticed:

1. Update: the government wants it to be called the Bill of Rights 2022.