Time to kill the bill

MPs and peers say Bill of Rights Bill should go no further

Parliament’s joint committee on human rights has said the government “should not proceed” with the Bill of Rights Bill introduced by the justice secretary Dominic Raab last June. The bill has never been debated in parliament.

In a report published this morning, MPs and peers say that Raab’s bill:

• weakens rights protections;

• undermines the universality of rights;

• shows disregard for our international legal obligations;

• creates legal uncertainty and hinders effective enforcement;

• will lead to an increased caseload in Strasbourg; and

• will damage our international reputation as guardians of human rights.

Dominic Raab (in blue suit) with unsmiling members of the the human rights court in Strasbourg this month. L to R: Abel Campos (deputy registrar) Siofra O’Leary (president) and Tim Eicke (UK judge)

What’s more, says the all-party committee, it’s not a bill of rights at all. If the government decides to press on with it, the bill’s title should be changed to something more meaningful — such as the European Convention on Human Rights (Domestic Application) Bill.

But that would not be the committee’s preferred option. “We have hardly heard any support for the Bill of Rights Bill,” the committee says:

The government-commissioned independent review did not support repeal or reform of the Human Rights Act 1998; the government’s consultation analysis showed very little support for a bill of rights; the evidence we have received in this inquiry is overwhelmingly against the bill; and there is significant opposition to the bill from the governments of Scotland, Wales and in relation to its potential impact in Northern Ireland. The previous administration also took the decision to halt and reconsider the bill.

Given the significant opposition, we urge the government to reconsider its decision to proceed with the bill.

Today’s report ends with this blunt conclusion:

The government should not progress the bill in its current form through parliament.

Until last month, Raab had always insisted — despite his attempt to change the way the human rights convention was interpreted and applied by courts in the UK — that the United Kingdom would remain a party to the convention. On 14 December, as I reported, the justice secretary refused to rule out the UK’s potential withdrawal from the international treaty. That would be be a “deplorable and regressive step”, the committee says, “which would see the UK become an outlier in Europe alongside Russia and Belarus”.

Comment

This is a detailed, forensic evisceration of the Bill of Rights Bill running to more than 100 pages, plus summaries and annexes. It proceeds, as it must, on the assumption parliamentary time will be found for the bill to proceed.

Over the years, a huge amount of work has been put into drafting and redrafting Raab’s bill by officials at the Ministry of Justice and parliamentary counsel — the government’s specialist drafters. An equally large amount of work has now been put into taking it apart it by officials working for the joint committee, under the able leadership of its chair, Joanna Cherry KC MP.

And a great deal of work went into the report of the independent Human Rights Act review, which was chaired by Sir Peter Gross. But, as Lord Carnwath said last year, the Gross report and the government’s consultation were “almost like ships that pass in the night”.

Has all that work been wasted?

It has always struck me as unlikely that the Bill of Rights Bill would be passed in its current form. Procedurally, it cannot be amended before a second reading debate in the Commons. But, in case the government decides to let the bill take its chances, the committee has drafted a slew of amendments that — if accepted — would remove its worst excrescences and retain some of the safeguards in the Human Rights Act 1998.

The government must now draft a formal response to today’s report but we can be sure that Raab will regard almost all of the committee’s proposed amendments as unacceptable.

The sole exception is clause 19, which the committee welcomes. This would implement the only legislative change that the government is required to make as the result of all the rulings delivered by the human rights court during the year from August 2021 to July 2022. It arises from an unusual case called SW v UK — SW standing for social worker — which I wrote about last month. If Raab’s bill is abandoned, this clause could easily be slotted into a different bill.

Anyone familiar with my own writings on this topic will not be surprised to find that I agree entirely with today’s report. It’s little surprise that the committee could not find anybody apart from Raab who supported the bill as drafted. The best it could come up with was this:

Professor Richard Ekins, head of the Judicial Power Project at Policy Exchange, has recently published a report stating the government should enact “a bill that simply repeals but does not replace the Human Rights Act” and “should be willing to withdraw from the European Convention on Human Rights and should give serious and ongoing consideration to whether — and how or when — to withdraw”. Moreover, Lord Sumption, in his evidence to us, appeared to broadly support the bill’s underlying objectives [though he said it was “a singularly badly drafted bill”].

A limited number of the provisions in the bill did have some support from stakeholders. Several of our witnesses supported clause 25, which would require the secretary of state to notify parliament of adverse European Court of Human Rights judgments. Moreover, the News Media Association, Reach and the Free Speech Union supported the underlying purpose of clause 4 to strengthen freedom of speech (although they made some specific criticisms [of it]).

Cherry said today:

Human Rights are universal. A bill of rights should reaffirm and reinforce the fundamental rights that protect everyone in the UK but this bill does nothing of the sort. Instead, it removes and restricts certain human rights protections that the government finds inconvenient and prescribes a restrictive approach to the interpretation and application of the European Convention on Human Rights in the courts of our domestic legal systems. 

We are also very concerned about the adverse impact on the constitutional arrangements of the devolved nations and the Good Friday Agreement…

We have called on the government to reconsider the vast majority of the clauses of the bill. However, there is such little appetite for these reforms and the impact is likely to be so damaging to human rights protection in the UK it may be more sensible to scrap the bill in its entirety.

I won’t trouble readers with a detailed summary of the committee’s masterly analysis unless the government decides to press on with the bill. But perhaps you will let me offer one example.

Positive obligations

It relates to what are called positive obligations. That sounds a bit abstract but it’s important. In some circumstances, the human rights convention requires states to take active steps to protect people’s rights against interference by others.

Some positive obligations are explicit: article 6 requires legal aid to be provided to defendants in criminal cases “where the interests of justice so require”. Others are implicit: the right to life in article 2 requires an effective investigation into a death for which the state may be responsible.

One of the central issues in the case of John Worboys, the so-called black-cab rapist, was whether a state was under a positive obligation to investigate crimes that breached article 3 — which prohibits inhuman or degrading treatment. The Supreme Court confirmed in 2018 that the positive obligation to investigate under article 3 was not confined to cases of ill-treatment by state agents. That was vital to keeping Worboys behind bars.

And yet Raab’s bill would not only freeze the development of new positive obligations. It would also limit the application of existing obligations.

His rationale was that the police had interpreted a ruling in a case called Osman v UK by indiscriminately issuing “threat-to-life” notices whenever an individual might possibly be at risk.

These notices were not required by the Strasbourg ruling. But the Centre for Women’s Justice told the committee that they saved lives:

The consultation paper preceding this bill suggested that the threat-to-life notices which have followed Osman are an operational burden on the police, outlining that 770 such notices were issued in 2019 by the four biggest forces. What it fails to outline is whether that resulted in people not being killed; which would surely be a positive outcome.

Indeed, while the paper focuses on such notices being given to those who are purportedly involved in gang violence (implying that their lives are less worthwhile than any others) it fails to mention that such notices are also used for victims of domestic violence, “honour” based violence and stalking.

If it’s thought that these notices are less effective because they are being issued as a matter of routine, new guidance can be issued to the police. But that’s no justification for a reform that goes much further than the problem identified by Raab and introduces uncertainty into the law.

As I say, that’s just one criticism of one clause. There’s more, much more.