Last week the government of the United Kingdom introduced draft legislation into parliament that would repeal the Human Rights Act 1998 and replace it with another statute.
Let us start with the name of the proposed new law. When enacted the bill will not be called the something-or-other act. No: it will be one of the very few acts of parliament which will not be called an “act of parliament.” Instead the insistence is that it has to be called the “Bill of Rights”—joining a very select group of legislation, such as the Statute of Westminster, that is considered so important that the word “act” is dispensed with from their formal title.
It is difficult to overstate the portentousness of this title for any legislation, but in this particular case the title is also absurd. For the new legislation is designed not to confer new rights or expand existing ones, but to limit the practical effectiveness of rights already in existence. In clause after clause, complicated and detailed provisions seek to make it less possible for rights to be asserted. It is not a bill of rights, but a list of spoilers.
But the import of these spoilers may be limited, because of the one important thing this bill does not do. The European Convention on Human Rights will remain part of domestic law. Just as the Human Rights Act 1998 contains the convention as a schedule, so does the new bill. The new bill uses an identical definition of “convention rights” and expressly provides that public authorities have to give effect to those rights. That this is a fundamental change is an illusion.
Other provisions in the bill will not in practice have any actual effect. There is even a strange clause purporting to provide for a right to a jury trial when the law already provides for a right to a jury trial.
The bill therefore does nothing to placate the backbenchers and media supporters who wanted the United Kingdom to depart from the convention and escape the reach of the Strasbourg court that enforces it. In this way, the bill is not a continuation of the Brexit impulse of “taking back control” from European institutions (even if the convention is distinct from the European Union).
The legislation is thereby a political misdirection. And this was always going to be the case, as the government of the United Kingdom cannot depart from the conventions, as the Good Friday Agreement expressly provides that convention rights must be directly enforceable in the courts of Northern Ireland. This stipulation severely restricts the United Kingdom’s freedom of manoeuvre.
And if the UK is not leaving the convention, the convention still binds the UK as a matter of international law. This means that if any of the spoiler provisions have the actual effect of reducing or removing the protection of convention rights, then the aggrieved party can still petition the European Court of Human Rights.
Such petitions will cause costs and delays, but they may also—paradoxically—require a greater role for the Strasbourg court than at present, when there are few restrictions on our domestic courts on how they apply convention rights in particular circumstances.
The government does not even have a mandate for this exercise in repeal and replacement. The Conservative manifesto in 2019 promised only that the existing legislation would be “updated” rather than repealed outright. This means that the House of Lords may amend the bill heavily as it goes through the legislative process, and the government may not be able to impose its will to force the upper house to give way.
The title “Bill of Rights” is, of course, intended to evoke the actual Bill of Rights of 1688. But this bill is not even a pale comparison. This is less a “bill of rights” than a “European Convention on Human Rights (let us pretend we are doing something substantial with some spoilers and so mislead our supporters) Act 2022.”
Given that we are at a time of crisis in the criminal justice and prison systems, the bill is a distraction. The Ministry of Justice has scarce ministerial time and other resources, and there is no good reason for that time and those resources to be dedicated to this bill instead of other urgent and more pressing matters. This is the legislative equivalent of lounging on a beach while Afghanistan falls.
