The Government propose to introduce a Bill of Rights and has produced a consultation on this with a closing date for response of 8th March. Charlotte Mbali has a conversation with a local barrister about this.
Local barrister (LB)
The government proposal and their analysis are rooted in their approach to relevant case law going back over many years. There are two principal ways of approaching this, (a) ignoring the law and addressing the question only on a political level, or (b) actually doing the necessary work and producing something worth reading. As someone who has an instinctive dislike of this government and anything emanating from it is tempting just to do a hatchet job and say that the whole project is devoid of merit.
Charlotte Mbali (CM)
The Government propose to introduce a Bill of Rights and has produced a consultation on this with a closing date for response of 8th March. Charlotte Mbali has a conversation with a local barrister (LB) about this.
Yes, I also note the views of the British Institute of Human Rights (BIHR) which is running a campaign against this proposal, see https://www.bihr.org.uk/human-rights-act-reform-template-letter. Their first criticism is that the public consultation is too dense and difficult to read for non-lawyers, which is why we are consulting you!
Having read the government’s documents I disagree with a lot, but I also agree with some of what is said, and there is in my view some merit in some of what is being proposed by the government. My principal reason for saying this is because in my view there are some problems associated with the expanding jurisprudence of the European Court of Human Rights (ECHR) in Strasburg which prior to Brexit could overrule our own Supreme Court.
Although we might sometimes agree with the decision of the ECHR, we have to bear in mind that we are primarily a Parliamentary Democracy and that it is (in my view) crucial that our legislature has the final say on important social policy, not the Courts, if there is to be remain any kind of valid consensus within society on contentious issues like equality, immigration, the right to protest, freedom of speech vs the right to privacy etc etc. It is for these reasons that I agree with some of what is proposed by the government. It could be a good example of the right action being taken for the wrong reasons.
The wrong reasons could include the many fake stories put out by the populist Press in recent decades. I have just read “Fake Law” by the Secret Barrister which, on page 138, cites a collection of phrases from the right-wing press (the Daily Mail, the Daily Telegraph and the Sun), with phrases such as “Europe-inspired human rights legislation,” “devalued Magna Carta,” “unelected euro judges,” ”charter for criminals,” (which stopped deportation of a foreign criminal because he had a pet cat!) Secret Barrister dissects these cases and demonstrates that the stories were fake, based on distortion of the actual court cases. So to what extent do you believe this proposal is part of Brexit machismo, with the Government just trying to sever the UK from anything European?
Until Brexit took effect in early 2020, EU law was superior to UK law and took precedence. Since Brexit this is no longer the case. This means that the Luxembourg based Court of Justice of the European Union no longer has any say in UK law. It is important to recognise that this has no bearing on the ECHR in Strasbourg which was established by quite separate treaties under the Council of Europe in 1949 and still plays a crucial role in all European Law. It is based on the Universal Declaration of Human Rights declared in 1948 in the aftermath of world war II. The fact that the UK has left the EU does not mean that the European Convention ceases to play a role in UK law. In fact, the UK is still a member of the Council of Europe.
Actually the government is not proposing to try and repeal the UK Human Rights Act 1998 or to withdraw the UK from being party to the European Convention on Human Rights. Their words on this are “The UK will remain party to the Convention and will continue to fulfil its international obligations.”
So this is not just another swipe at anything pro-European?
The UK judiciary has from time to time expressed concerns about the fact that the law can be changed in the UK due to rulings of the ECHR in Strasbourg and our Parliament will have little or no role in this process. It is to address this perceived involvement of a “foreign court” that the current UK government has now produced the proposals found in their “Human Rights reform: A modern Bill of Rights” paper and consultation, as a way of initiating the legislative process.
There is no doubting the right wing political agenda that is at the heart of this initiative, coming as it does primarily from people who want to water down and/or eradicate any perceived European influences in our legal system. It would, however, be untrue to say that there are no problems with the ECHR system as it currently operates, and this has been alluded to by various judges, in extrajudicial statements about the impact of the European Convention on the law in the UK. The document on the government website quotes from the UK judges who have expressed concerns about the ECHR and its impact on UK law.
The government document also quotes extensively from different cases, and this makes for difficult reading for non-lawyers. The whole document is dense and long, more than 80 pages, and so it is not easy for most people to make any kind of contribution to what is a technical and complex debate.
Yes, although it is open to everyone, the questions in the consultation seem to be directed to lawyers who may have experience in case law that touches on human rights. You probably do as a labour barrister.
Yes, human rights as a point of law does frequently arise in litigation that is not overtly about human rights, and the court is often required to weigh the relative importance of the impact on the case being considered of different parts of the Convention. Nothing the government is proposing will add or detract from this process, nor could it without very specific primary legislation. In fact something that came to mind when I was reading this document online is how complex the situation actually is, because we have now had so many years of the Convention being incorporated into our jurisprudence by the Courts at all levels, and also it’s now more than 20 years since the Human Rights Act 1998 was enacted. Additionally, we have had a lot of individual litigation which by themselves incorporate important European law relating to equality and what could broadly be termed human rights which has become part of our jurisprudence and everyday life, eg the Equality Act 2010. These proposals do not seek to amend these myriad pieces of legislation and in fact this could only be done by Parliament deciding to address each relevant Act specifically and individually.
So it sounds to me as if you are saying that a new Bill of Rights is unnecessary because legal judgements in the UK depend on case law. Are you positive about ANY of the questions in the consultation?
It is not explained in the document that the Human Rights law (which was brought within the UK system by the Human Rights Act 1998) encompasses huge areas of law covering ordinary life and this is encountered, for example, in employment legislation concerning discrimination on the grounds of various protected characteristics which include religion and belief, sex, sexuality, disability, age, race.
Section 3 of the HRA 1998 says that all other legislation must be interpreted and given effect in a way that is compatible with the European Convention on Human Rights. This section has given rise to numerous human rights claims in the courts over the years since 1998.
Human Rights can arise as a part of a claim in many different ways in various courts. To give only one example: this could arise in an employment claim in the Employment Tribunal where someone is suing their ex-employer for discrimination. This originates in Article 14 of the Human Rights convention, and so in this way human rights are a key component of numerous claims in the Employment Tribunal every day. With respect to these employment claims, the Convention has been given effect by the Equality Act 2010.
Unless the current government manages to persuade Parliament to either repeal or amend the Equality Act 2010 it will remain in force, as it does at the moment. Nothing in the government’s current proposals affects the existence or implementation of this, or any other, relevant Act of Parliament. This is an important point because the Convention is given life in our ordinary lives through things like employment immigration litigation (my field as a barrister) and primarily not through special claims only based on “human rights.”
It is the implementation of section 3 of the Human Rights Act 1998 that is in many ways at the core of this debate because hitherto there has been, and still is, a requirement that our courts must implement the rulings of the Strasbourg court where it differs from our own law.
The government proposes that our own Supreme Court should be given the final say on Human Rights law and that while the Convention and the Strasbourg court would continue to play an important part in the development of the law they would not be the final authority in the UK.
Is this a good idea?
From a democratic accountability point of view this may be a good thing. If the Strasbourg court was moving in a particular direction that was not one that the UK wished to follow we would not have to do so. However, It could however mean that the UK approach to human rights diverged, over time, with the broader European approach.
We realise new perceptions of fundamental rights emerge, often as a result of actual cases that come before the courts and the judges’ decisions in those cases. Case law from Strasburg used to dominate, but the proposal is that now UK judgements will have first priority in legal arguments?
Yes, and it helps that our judiciary are genuinely independent of government and Parliament and have shown this within recent times in important ways.
So how would the proposals alter how legal cases work out in the UK?
The government paper (available online) sets out a series of questions. Set out below are some points on the main questions.
Supremacy of UK Supreme Court
The first question is about the proposal that any new Bill of Rights should set out the supremacy of the UK Supreme Court.
Questions 4 to 7 are about freedom of expression and the balance that needs to be struck between privacy and family life, national security etc, and freedom of expression. The questions ask how a new Bill of Rights should provide stronger protection for journalist’s sources. This can be a real and pressing issue on some occasions and there might be scope for the UK to adopt stronger protection for journalists along the lines of the first amendment of the US constitution.
Permission to proceed to full hearing of a case
Questions 7 and 8 are about the possibility of a so-called permission stage for any claims relating to human rights. Were this to be instituted it would mean for example that, in order to bring a human rights challenge against the state, someone would have to be able to convince a judge that their claim had sufficient merit and chances of success to allow it to proceed to a full hearing. There are a number of points to make on this: (1) A permission stage as such is not that unusual in legal proceedings, especially in relation to any appeal. For example, to be able to bring an appeal against a judgement of the Employment Tribunal there needs to be a point of law and, secondly, that there are sufficient merits in the possible appeal.
This then goes before a judge at the permission stage to determine if there should be a full appeal hearing, or not. (2) A great many of the human rights based challenges and claims against the state are brought in the Administrative Division of the High Court where so-called Judicial Review claims are brought and, under current JR rules, nobody can bring a claim without a permission in this forum without going through a permission stage. This means that, even now, any human rights law based JR challenge to the state will currently have to go through a permission stage when it is quite possible that a judge will rule that the claim cannot go ahead to a full hearing. This point is not made in the government papers, and so non-lawyers will not understand that there is already a significant level of filtering of claims that takes place. For this reason it is hard to understand why the government is proposing to try and add yet more filtering when most of these claims already have gone through this testing stage.
Does human rights legislation harm public services?
Question 11 asks “How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities being impacted by human rights litigation?”
It is hard to know where to start with this very vague point. It is only by careful analysis of a large number of Judicial Review claims over a number of years that it would be possible to have a clear view about whether Parliament’s original intentions in particular legislation is being undermined or altered out of all recognition by the Court in the absence of sufficient Parliamentary scrutiny. This point is mere assertion by the government, not backed up by anything like sufficient analysis. It is crucial to understand that the High Court can only entertain a direct challenge to any legislation if it is secondary legislation, and then only on very narrow grounds. No primary legislation can be challenged in the Courts. Even if a statutory instrument or other piece of secondary legislation is quashed by the High Court, then Parliament can always amend or reinstate this by enacting the same point as primary legislation which could not then be changed by the Court.
Should sections of the UK Human Rights Act be repealed?
Questions 12 and 13 relate to section 3 of the Human Rights Act 1998. This is the requirement that other legislation is interpreted in a way that is compatible with the Human Rights Act. The government asks if this section of the HRA 1998 should be repealed, and the short answer on this point is no: it should not be repealed simply because it has resulted in judgments that are unpopular with the executive or, in particular, with the Tory Party. The rest of the question asks if this section should be amended. This section can be and is applied by courts at all levels on an everyday basis, as mentioned by the example above in relation to employment litigation and, with this in mind, it makes no sense to simply repeal a section of this kind without replacing it with something that is very carefully thought through. There has been nothing like sufficient or wide enough consideration given to this proposal for it to be done responsibly in the near future.
It is Parliamentary scrutiny that is the key to this point; if judgements are made in UK courts that government/Parliament doesn’t like then a recommendation can always be made by the government and/or a Parliamentary committee to reword existing laws (amend them) or make new ones.
Deportations in the public interest
Question 24 the government says “How can we make sure deportations that are in the public interest are not frustrated by human rights claims? The government then goes on to ask :
(1) should the Bill of Rights provide that certain categories of individuals should not ever be prevented from deportation by human rights claims.
(2) provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights, or
(3) provide that a deportation decision cannot be overturned unless it is obviously flawed, preventing the courts substituting their view for that of the Secretary of State?
Number 1 is clearly dangerous and too wide and vague to be implemented. Number 2 could be implemented where there is a well designed legislative scheme related to deportations.
Why not have a written constitution?
It is questionable that a new Bill of Rights is really the best answer to the questions posed by the government. Firstly, if the UK is to go the trouble of having a new Bill of Rights, then it is equally arguable that this should cover wider constitutional points and so move towards a more codified constitution than we currently have.
Better Public consultation needed
Secondly, before moving towards any kind of Bill of Rights, there needs to be a much wider debate, one not couched, initially at least, in technical legal questions but brought questions of principle that make it possible to include a much wider cross section of the public.
Human rights related legal claims are much wider and encompass much more than is mentioned in the government documents/consultation, and the government shows no sign in its online consultation that it appreciates the wider implications of any changes to how human rights law might be changed. It would perhaps make sense to ask the Law Commission to look at the more technical aspects of the questions that are raised by the government, whilst encouraging the widest possible debate on the points of principle. It is also for Parliament to keep the impact of changes to the human rights law under review and where necessary to take legislative action. An ill-thought out and half baked “Bill of Rights” is unlikely to improve matters, especially when Human Rights law has such wide implications.
Editor’s note: Note the deadline of March 8th for readers who wish to input into the public consultation