Announcing a Bill of Rights should be an inclusive affair, reaching for cross-party and wide public support, designed to give assurances to every citizen that their rights against abuses by the state will be equally protected by law.
It is curious then, that the latest pronouncement on a new Bill of Rights came first in the form of a paywalled article, authored by the Justice Secretary Dominic Raab, which suggested that the purpose of a new “quintessentially British” Bill of Rights would be to water down rights protections and deliver a “healthy dose of common sense” to the system. Far from depicting this new instrument as a way to champion universal and fundamental values, as most international treaties and national constitutions try to do, the justice secretary sought to carve up the Human Rights Act (HRA) into a new politicised hierarchy of rights, justified under nationalist guise. The “fault” with our current system, we were told, “lies with the [Human Rights Act].” The blame was squarely placed on the importation of a “continental European model.”
The Human Rights Act 1998 was designed to “bring rights home,” by allowing us to enforce our rights under the European Convention on Human Rights (the Convention) in domestic courts instead of having to go to Strasbourg. It is separate from the European Union, and the enactment of Brexit does not extract the UK from its treaty obligations under the Convention.
A review of a major piece of legislation, some 20 years after it has come into effect, is not inherently problematic. Evidence-based analysis can be valuable in plugging loopholes or reflecting societal or jurisprudential changes. Alarm bells should ring, however, when proposed reform centres around meaningless data, or an anecdotal example which happens to be an old case, unsupported by current law or modern judicial interpretation. Yet Raab relied on both of these to launch his justification for change. The sense of an ideological agenda was underlined by his article in the Times being published only hours before the report of the Independent Human Rights Act Review (IHRAR), chaired by retired Court of Appeal judge Peter Gross. This had in fact been submitted to the government by the independent panel in October 2021.
When the IHRAR was eventually published, it became quite clear why the government was trying to get ahead and recast the narrative. The IHRAR is a sober 580-page document (which I have not yet read and absorbed in full) condensed in a helpful Executive Summary. While there are some recommendations for reform, it is apparent that there is no proper basis for the government’s narrative that judges (in the UK or Strasbourg) are out of control, nor that groundless human rights claims are proliferating. Instead, it focuses mostly on tweaks to achieve clarity and the need for public education. This comes as no surprise, given a strong political and media campaign in the UK which has been openly hostile to the HRA.
The IHRAR recognises, as it must, that anything that sets the government on a collision course with the European Court of Human Rights in Strasbourg (such as on the question of conduct of military operations abroad) would “risk serious harm to vital UK interests” since, so long as it remains a party to the Convention, the UK is under a treaty obligation to abide by judgments against it. It confirms that a careful and cautious process has been adopted by the UK courts, developing and applying a properly principled approach, guided by judicial restraint. It talks about the “mature equilibrium” that has been reached between the UK courts and Strasbourg, leading to a mutually beneficial relationship. The IHRAR explains that the constitutional principle of parliamentary sovereignty is not adversely affected by the HRA.
It also emphasises that the “preconceptions” against the HRA contrast “with evidence and fact.” Despite this, the justice secretary did not present either evidence or facts to back up his claim that the system requires an overhaul. He wants to assert “democratic control” by ending “the practice of the courts, required by section 3 of the HRA, to alter legislation which is squarely Parliament’s job.” We have heard the narrative on taking back control before. But on that key attack, which is in any event misleading, the IHRAR explains “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.”
This government has form for trying to get around a report, a conclusion or an appointment it does not like. In fact, the actual consultation paper produced, at least in some respects, suggests less of a drastic overhaul than Raab desires. But there is reason enough for alarm that the introduction of this new Bill of Rights will endanger the protection of rights of some of the most vulnerable people and make enforcement of rights even harder. Indeed, strikingly for a constitutional document of this nature, that appears to be the motivation.
In seeking to reframe the hierarchy of rights in respect of freedom of expression and privacy, the government champions a cause without properly engaging with the detail of complex arguments. The balancing act between these two sometimes competing rights is not always easy to get right. Any genuine attempt to tackle and redress the forms of harm present in contemporary society—as one should expect of a 21st century Bill of Rights—would consider privacy in our world of technology and AI. Article 8 of the European Convention—which the government dislikes—remains central to understanding individual rights in the context of data protection, biometrics, facial recognition technology, online harm or workplace monitoring, to name but a few. Instead of the thoughtful balancing exercise carried out by judges, both in the UK and in Strasbourg, Raab summons back the culture war, squarely aiming his punches at those who show “hypersensitivity,” a thinly disguised dig at those this government considers “woke.”
Raab’s nationalist arguments for promoting “our tradition of liberty” are heavily tainted by the series of repressive, regressive government bills currently before parliament. The implementation of those measures would severely impair our right to meaningful protest, permit citizenship to be summarily removed without notice, violate the letter and spirit of our international legal obligations to asylum seekers and introduce controversial voter ID laws with scant evidence to back them up. There are others. Many of these disproportionately impact minorities and strike against fundamental rights protected in international law, such as the right to peaceful assembly, which is intimately connected with freedom of expression.
“The government is trying to make the state less accountable, by constraining our rights and making them more difficult to enforce”
The championing of parliamentary control sits uncomfortably alongside this government’s consistent attempts to bypass scrutiny and accountability, ramming through legislation at speed or through extensive use of powers delegated to ministers. Only last month, two respected House of Lords committees independently issued stark constitutional warnings about the shift in power towards government. Both concluded that a “critical moment has been reached when Parliament as a matter of urgency should take stock and reconsider how the balance of power must be reset afresh.”
So do the Bill of Rights proposals rebalance power? They do, but in favour of an overly powerful government instead of the citizen. There is no proper evidence that the HRA requires substantive reform, or that the justices on the UK Supreme Court need protecting from their Strasbourg counterparts. Instead, the government’s proposals include introducing a permission stage for HRA claims that are already difficult to bring on the un-evidenced basis that there are claims which need to be weeded out. This appears aimed at deportation cases, which are already weighted against some of the most vulnerable individuals. Even more striking for a document that purports to be laying the groundwork for a Bill of Rights is a proposal which appears to fundamentally undermine the purpose of the HRA, by deeming that public authorities are not acting unlawfully even if they violate human rights. This is surely unlikely to withstand any challenge before Strasbourg, as it simply prevents any remedy for a breach of Convention rights.
The government also wants to introduce some sort of good behaviour requirement to inform how remedies are awarded, which would create a secondary tier of undeserving victims. This is at one with Raab’s narrative of abuse, but damages awards tend to be low in any event. The real remedy is the court’s finding of a violation, which ought to lead to redress. In other words, accountability is the essential point of most human rights claims. What the government is trying to do is make the state less accountable, by constraining our rights and making our rights more difficult to enforce.
The European Convention on Human Rights is an important and well-respected international treaty. It forms part of the international language, structure and culture of human rights. The “Global Britain” much trumpeted by this government wants to call out other states for breaches of international human rights law, but in order to do this, it needs to both uphold and hold up the international order itself. None of this is to suggest that either the HRA or the Convention are beyond challenge or reproach, or that other models of protecting human rights should not be discussed. But much criticism of the HRA, both by members of this government and sometimes the media, arises from misperceptions about the nature of human rights. The IHRAR specifically identified the role the executive and parliament should play in correcting this, but the government’s language—even within the consultation document itself—suggests it has no intention of remedying this wrong. As with the last attempt to introduce a Bill of Rights, motive matters.
It is welcome that the government has confirmed it intends to remain a party to the Convention. It certainly needs to in order to retain any international credibility at all. Very few judgments currently go against the UK in Strasbourg. But Raab’s vision is likely to lead to more findings of violations. That may itself be a driver used to justify leaving the Convention in due course.
In the wake of Brexit, and with a population not yet recovered from the toxicity of divisive nationalist rhetoric, Raab’s ideological attack on a well-functioning Human Rights Act only aggravates the hostility that the IHRAR identified, and damages the legitimacy upon which any new Bill of Rights must be built.
Raab has waged a long campaign against the Human Rights Act. There have been previous unsuccessful threats and attempts to dislodge it before. This latest consultation, which may yet end up in the long grass, is unlikely to be the last word.
