Consultation on the Modern Bill of Rights

A consultation on the Government’s proposed “Bill of Rights” to replace the Human Rights Act 1998 (“HRA”) has (in March 2022) just been extended following the government’s belated realisation that there was no consultation in accessible formats. A poor start for a modern Bill of Rights.

Question 29 of the consultation is “what do you consider to be the likely costs and benefits of the proposed Bill of Rights?”

The Command Paper on which the consultation is based seems to be an attempt to argue for everything that is wrong with the HRA rather than any kind of balanced evaluation of the HRA and its proposed replacement. It is a peculiarly narrow-sighted document: I did not find any citation of the opinion of any victim of a human rights violation, or of anyone from a minority.

At paragraph 184 the Command Paper explains:

The rights as set out in Schedule 1 to the Human Rights Act will remain. We regard the Convention as offering a common-sense list of rights. The key problems have arisen from the way in which those rights have been applied in practice, at both the Strasbourg and domestic levels.

So we will keep (largely) the same rights. However, one of the intentions appears to be to allow our judges the freedom to diverge further from Strasbourg jurisprudence and to reframe the remedies available for violations of rights in the UK. This does not seem to have been thought through. There is no suggestion that the UK will not remain a signatory to the European Convention on Human Rights or that complainants cannot continue to take cases to the Strasbourg court. So, one net effect of the Bill of Rights will be be that power and authority over interpretation and application of the Convention will be exported back to Strasbourg.

The Command paper also seems to misunderstand the elegant respect for parliamentary sovereignty in sections 3 and 4 of the Human Rights Act 1998.  Paragraph 116 says this:

… the Human Rights Act requires the courts to alter the meaning of primary legislation in order to make it compatible with the Convention rights, whenever it is possible to do so (section 3). It is one thing for the UK courts to declare legislation incompatible with human rights, but quite another for them to be required to revise that legislation, in material respects, in order to ensure compatibility without there being any direct or meaningful Parliamentary oversight.

This is not a correct understanding of how the Human Rights Act works. Section 4 allows for declarations of incompatibility where legislation cannot be read in a way that is compatible with the Convention rights. As to section 3 HRA, far from empowering and requiring courts to “revise” legislation, it provides that incompatible legislation continues to operate even where it breaches Convention rights. The Command Paper suggests the government — and those constructing the consultation — have not really understood that there is nothing in sections 3 or 4 that inhibit parliament from legislating contrary to the Convention. Properly understood, it seems that sections 3 and 4 of the Human Rights Act already achieve precisely the balance which the government wishes to achieve by replacing them.

Article 8

Although there is no intention to amend the substantive provisions in Schedule 1 to the HRA, it is clear that there is a desire to emphasise the “rights of others” part of the balance in Article 8. The paper says the intention is to:

“Provide greater clarity regarding the interpretation of certain rights, such as the right to respect for private and family life, by guiding the UK courts in interpreting the rights and balancing them with the interests of our society as a whole (paragraph 282 onwards)”.

Yet this is precisely what has already been done by the amendments in 2014 to section 117C of the Nationality Immigration and Asylum Act 2002. That provision is entitled “additional considerations in cases involving foreign criminals” and is reflected in paragraph 399 of the Immigration Rules. This provides for additional weight to be given to the advantages of deportation when deciding if there is an article 8 breach. Section 117C is in fact a good illustration of the UK legislature using its margin of appreciation to pare down the rights of foreign criminals to the absolute minimum consistent with international standards: it is an area in which parliamentary sovereignty has been decidedly preserved.

The Objection to the “Living Instrument” doctrine

The Paper argues strongly against the Strasbourg “living instrument” doctrine which it says means that the Strasbourg court has developed rights in ways “going well beyond what the drafters and original signatories had intended or could reasonably have anticipated” (paragraph 47). However, the alternative to a living instrument would be an ossified instrument where rights never progressed beyond the thinking of the 1950s (when the Convention was signed). That was a time where homosexuality was outlawed and women did not have equal rights in the workplace. It might be thought illogical that a Bill of Rights should not be a living instrument.

The Paper cites Hirst v The United Kingdom (No.2) [2004] 38 EHRR 40 which concerned article 3, protocol 1, the duty to hold free elections and the Command Paper makes the point that when the UK signed the Convention it had a prohibition on voting rights for felons, a fact reflected in the travaux préparatoires of the Convention and in the minority judgments in the Hirst case. The Hirst case was decided in Strasbourg in 2005 after some years in the making. In 2018 the UK proposed to the Council of Europe that prisoners on licence would be permitted to vote and that was accepted as remediating the breach and the case was closed. Yes, the UK had to take a measure which it did not agree with in order to comply with minimum standards of democratic countries, but the change required in the UK was minimal and it is difficult to sympathise with such a fundamentalist view of parliamentary sovereignty.

Conclusion

The key objection seems to be a sense that parliamentary sovereignty is threatened by the HRA in the way that it was seen to be threatened by EU membership. The Paper seems to misunderstand what is in fact the genius of sections 3 and 4 in achieving precisely the balance between judicial and legislative authority that the Paper propounds. The Paper also seems to lack any of the great British idea that it is a good thing that judges say things that parliament does not like.

Ultimately, there is no big idea:  the proposed Bill of Rights amounts to little more than tinkering with the Human Rights Act. But the problem with tinkering is that less benevolent custodians of legislative authority might tinker in other ways. Human Rights matter. And they matter precisely because they restrain parliamentary sovereignty. There is a significant strength which lies in immutability.

Alex Goodman practices in public law and is the winner of the Outstanding Achievement Award at the Legal Aid Lawyer of the Year 2021.

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