When the Human Rights Act 1998 (HRA) was introduced 25 years ago, it was accompanied by a White Paper that proclaimed the Act would ‘bring rights home’ by enabling the enforcement in UK courts of a suite of rights — set out in the European Convention on Human Rights (ECHR) — that were at least in part inspired by the common law tradition and by the work of British lawyers. How things have changed. The UK Government now proposes to repeal the HRA and replace it with a Bill of Rights Bill. Introducing that Bill in the House of Commons this week, the Justice Secretary, Dominic Raab, distanced himself from the view that the HRA brought rights ‘home’, ahistorically contending that the ECHR is less ‘British’ than its supporters suggest and arguing that such a view implies a ‘perverse and neo-imperialist’ perspective. He has since written in a newspaper that the Bill ‘will strengthen traditional UK rights’ which are ‘under attack’ from ‘stifling political correctness’.
Against that background, I will argue in this post that if the HRA ‘brought rights home’, the Bill of Rights Bill involves sending rights back to Europe, as part of a narrative that views with suspicion the judicial enforcement of human rights generally, and the involvement of a transnational court, in the form of the European Court of Human Rights (ECtHR), in particular. The post is divided into three main parts: first, I comment on what will not change; second, I outline key changes that the Bill will introduce; and, third, I assess the broader implications of the Bill in terms of human rights protection in the UK. In that regard, I argue that the Government’s strategy appears to involve making it more difficult for human rights to be enforced in UK law both by marginalising the domestic influence of the ECtHR and by limiting the capacity of domestic courts to uphold Convention rights. I conclude that these policy objectives form part of a wider picture according to which the present UK Government exhibits authoritarian tendencies that are in tension with British constitutional tradition.
Things that aren’t changing
The Government could simply have amended the HRA to address the problems it perceives. Instead, it has chosen to repeal and replace the HRA. Nevertheless, the Bill of Rights Bill shares some features in common with the HRA — albeit that, as we will see, the similarities are often only skin deep. Let us begin with four key things that are, at least superficially, not changing.
Still a State Party to the ECHR
First, and crucially, the Government has made it clear that the UK will remain a State Party to the ECHR. (That is not something the Bill itself provides for, but it forms a key premise on which the Bill is drafted.) This means that the UK will remain bound in international law by its treaty obligations under the Convention. Here, it is particularly worth noting that Article 1 ECHR requires States Parties to ‘secure to everyone in their jurisdiction the rights and freedoms’ set out in the Convention. Meanwhile, Article 46 requires States ‘to abide by the final judgment of the [ECtHR] in any case to which they are parties’. However, while the Government intends the UK to remain a State Party to the ECHR, and has framed the Bill accordingly, the Bill (and the political noises off in relation to it) hardly implies a full-throated commitment by the Government to the ECHR. Indeed, as I will suggest below, one of the key effects — and doubtless aims — of the Bill is to introduce greater distance than presently exists between the UK’s human rights regime and the ECHR system. Whether that distance will be sustainable in the long term remains to be seen.
Same set of Convention rights
Second, clause 2 confirms that the Bill gives effect to the same set of Convention rights as the HRA: namely, the rights set out in Article 2-12 of the Convention along with those contained in Articles 1-3 of the First Protocol and Article 1 of the Thirteenth Protocol. There is therefore no change to the scope of the catalogue of rights that are to be given domestic effect. However, for reasons to which I turn below, the Bill gives effect to those rights in different — and, in significant respects, lesser — ways than the HRA. This means that any claim that the Bill is not diluting domestic human rights protection because it gives effect to the same set of rights as the HRA must be taken with a large pinch of salt. The same rights might be in play, but the Bill certainly does not accord them the same degree of domestic legal effect as the HRA presently does.
Declarations of incompatibility
Third, domestic courts will continue to be able to make declarations of incompatibility when they find domestic legislation to be incompatible with Convention rights. In this regard, clause 10 of the Bill mirrors section 4 of the HRA. This means that when courts find that UK legislation is incompatible with one or more Convention rights, they will still be able to issue a declaration to that effect. As with the HRA, such declarations under the Bill will not invalidate or otherwise interfere with the operation of the legislation, but they will trigger powers under clause 26 of the Bill (similar to those presently in section 10 of the HRA) enabling Ministers to make regulations correcting the offending legislation. To date, such corrections have tended to be made (either by Ministers or by Parliament) as a matter of course, given that failure to do so would imply a breach of the UK’s international obligations and the risk of litigation before (and an adverse judgment from) the Strasbourg Court.
Once again, however, superficial similarity between the HRA and the Bill should not mislead us. For one thing, the policy of the Bill clearly signals (in ways I will explain below) greater willingness on the Government’s part to tolerate — indeed, celebrate — divergence from the ECHR regime. In that sort of political climate, we should not assume that declarations will necessarily trigger remedial action by Ministers with the degree of regularity that we have come to expect under the HRA. For another thing, the possibility of declarations of incompatibility under the Bill sits within a significantly different legal framework from that which we find in the HRA. On the one hand, for reasons that we will see in a moment, courts may be more likely to discover incompatibilities under the Bill, on account of reduced judicial powers to read UK legislation compatibly with Convention rights. On the other hand, other provisions in the Bill limit domestic courts’ powers to read Convention rights generously, thereby potentially reducing the circumstances in which incompatibilities will be found and potentially declared.
Duty of public authorities
Fourth, one of the key operational provisions set out in section 6 of the HRA remains in the Bill in clause 12. This concerns the duty of public authorities — including the Government itself — to act compatibly with Convention rights. However, here, too, we should not be misled by superficial similarity. Two considerations arise. In the first place, as noted above, domestic courts have less scope to interpret Convention rights generously, thus potentially diminishing the overall scope of the duty on public authorities to act in accordance with those rights. In the second place, as under the HRA, the duty contained in the Bill yields when public authorities are required by primary legislation to act incompatibly with Convention rights and when they act to give effect to or enforce legislative provisions that are incompatible with Convention rights. Since, as explained below, domestic courts will have less scope under the Bill to interpret domestic legislation compatibly with Convention rights, there will be likely be more situations in which the clause 12 duty to act in accordance with the Convention rights is displaced by legislative provisions that are found to be incompatible with those rights.
From all of this, two key conclusions follow. First, contrary to the assertion of the Justice Secretary, the Bill certainly does not enhance human rights protection. The very most that can be said for it is that it preserves human rights protection in the sense that it bites upon the same catalogue of rights as the HRA. Second, however, any suggestion that the Bill maintains the same level of protection as the HRA is ultimately doomed to failure because, for reasons hinted at above and developed below, the Bill significantly diminishes the level and forms of domestic protection afforded to the Convention rights.
Things that are changing
What, then, is changing? The short answer is ‘a lot’. But here is a longer answer, by way of four key points.
First, and most importantly, the Bill contains no provision equivalent to section 3 of the HRA. At present, section 3 empowers — and requires — courts to interpret domestic legislation compatibly with the Convention rights so far as is possible. This has enabled UK courts to confer a high degree of protection on human rights through the medium of interpretation: declarations of incompatibility under section 4 have remained relatively rare, thanks to the potent interpretive powers given to domestic courts by section 3. However, the Bill simply gets rid of the interpretive obligation and does not replace it with anything analogous.
What might happen in the absence of section 3? First, the general principle, whereby courts seek to interpret domestic legislation compatibly with the UK’s treaty obligations, will presumably apply to the ECHR post-HRA just as it did pre-HRA. But as the pre-HRA domestic jurisprudence shows, that principle was no match for the powerful obligation enshrined in section 3. Second, the courts might be prepared to find analogous rights at common law and then to bring to bear upon domestic legislation relatively potent common law canons of interpretation. But, these possibilities notwithstanding, it would be naïve to assume that getting rid of the section 3 interpretive obligation will make no difference: it undoubtedly will — and a significant one at that. In particular, it will likely mean (subject to the point made above) more declarations of incompatibility. And it will then be for the Government (using remedial powers granted by clause 26) or Parliament (by legislating) to decide whether to amend domestic legislation to remove the incompatibility. When such incompatibilities exist, the UK will remain bound to remove them in order to ensure that its Article 1 ECHR obligation is fulfilled, but courts will have less scope to avoid the existence of incompatibilities in the first place, and so politicians may more frequently find themselves having to decide whether to remedy them. As a matter of domestic law, they are free not to do so, but only at the expense of breaching UK treaty obligations and risking litigation and adverse judgments in the Strasbourg Court.
As a side note in relation to the passing of section 3, it is not clear what will happen to statutory provisions that have been interpreted differently because of the HRA. Will such interpretations fall away upon repeal (and given that section 3 has no analogue in the Bill)? Normally, section 16 of the Interpretation Act 1978 might prevent this, since it provides generally that repeal does not affect the previous operation of the repealed legislation or affect any right accrued under it. However, clause 40 of the Bill contains a very curious provision that allows Ministers to make regulations amending legislation ‘to preserve or restore … the effect of a relevant judgment’ — and it goes on to say that a ‘relevant judgment’ is one that appears to the Minister to have interpreted legislation in a particular way in reliance on section 3 of the HRA. This suggests — and the Explanatory Notes to the Bill appear to confirm — that the repeal of the HRA is intended to unravel interpretations rendered under section 3, unless Ministers choose to ‘save’ them by exercising their clause 40 powers. This strikes me as a recipe for chaos, not least because, as has been pointed out, it is not always clear to what extent an ECHR-compliant interpretation has been rendered because of section 3. This is just one of many examples of how the Bill will complicate the UK’s human rights regime, at least in the short to medium term.
Section 2 of the HRA currently requires UK courts to take account of ECtHR jurisprudence in cases concerning Convention rights. But no analogous requirement is set out in the Bill. This is consistent with the Government’s clear policy of marginalising the ECtHR in order to demonstrate that it is ‘taking back control’ from the ‘foreign judges’ and ‘foreign courts’ to whom Conservative MPs referred in the House of Commons when the Bill was introduced. In place of section 2 we now have clause 3 of the Bill. It says that the UK Supreme Court is the ‘ultimate judicial authority on questions arising under domestic law in connection with the Convention rights’. It then goes on to require domestic courts, among other things, to have ‘particular regard to the text of the Convention right’ and permits judicial recourse to the ‘preparatory work of the Convention’.
This appears to be an attempt to preclude domestic courts from favouring creative or generous interpretations of rights under the ECHR ‘living instrument’ doctrine, whereby the Convention is viewed as a dynamic rather than a static human rights instrument, instead requiring UK courts to focus on the ‘original’ meaning of the text. Clause 3 goes on to state explicitly that UK courts can depart from Strasbourg jurisprudence and say that domestic courts cannot interpret a right so as to expand the protection it offers unless confident beyond ‘reasonable doubt’ that the ECtHR would do the same. The point of comparison — expand the protection of the right beyond what, exactly? — is unclear, and the judicial guessing game that this requires is bizarre. But the general thrust is nevertheless readily apparent: the Bill seeks to ensure that domestic courts interpret Convention rights in a narrow, conservative fashion, even if that means departing from the way in which the ECtHR interprets those rights — and even if, as a result, UK courts are required to find that there is no incompatibility between domestic law and the ECHR (because the relevant right has been read artificially narrowly) when in fact there is. The ultimate issue here is the notion enshrined in clause 3 that the UK Supreme Court is the ‘ultimate judicial authority’ when it comes to the interpretation of Convention rights as a matter of domestic law. That is all well and good — but it cannot change the fact that, a matter of international law, the ECtHR is the ultimate judicial authority on such matters, and will continue to determine the scope of the UK’s binding treaty obligations.
Beyond this, the Bill seeks to micromanage in variety of more detailed ways how UK courts interpret and apply Convention rights. For instance, clause 8 prevents domestic courts from finding legislative provisions concerning deportation to be incompatible with the Article 8 right to respect for private and family life unless the provision would require the relevant person to be treated in a way that would occasion ‘harm’ so ‘extreme’ that it would ‘override the otherwise paramount public interest’ in removal from the UK. Clause 8 goes on to say that harm is only ‘extreme’ if it is ‘exceptional and overwhelming’ and cannot be mitigated to any significant extent or is ‘otherwise irreversible’. This does not accord with Strasbourg case law on Article 8 and will therefore result in UK courts being obliged to rule that legislative provisions concerning deportation are compatible with the ECHR when they are in fact incompatible. That, in turn, means that the UK will be in breach of its obligations under the Convention and will be vulnerable to adverse rulings by the Strasbourg Court. As above, proclaiming the UK Supreme Court as the ultimate judicial authority on such matters does not change the position in international law one iota.
A second example (but there are others) of this micromanagement can be found in clause 5. This extraordinary provision prevents UK courts from newly interpreting Convention rights as imposing positive obligations — that is, it prevents Convention rights from being interpreted in a way that requires public authorities (or others) to perform positive acts. This inhibition on domestic courts will apply even if it is necessary to interpret and apply Convention rights in such a way so as to give effect to the case law of the ECtHR. Moreover, in relation to Convention rights that have already been interpreted as imposing positive obligations, UK courts are strongly discouraged by clause 5 from continuing to interpret them in that way: before doing so, they must ‘give great weight’ to a range of public interests that, the Bill presupposes, are in tension with reading Convention rights as imposing positive obligations. Depending on how seriously UK courts take this provision, it may result in further divergence from ECtHR case law and therefore further breaches by the UK of its treaty obligations.
The role of Parliament
A fourth significant change — although it is really an extension of the previous category, being a particularly striking form of micromanagement — concerns the role that the Bill accords to Parliament. The political noise around the Bill makes it clear that the Government wishes to ‘take back control’ from ‘foreign judges’ in Strasbourg in particular but also — notwithstanding rhetoric in the Bill about the UK Supreme Court as the ‘ultimate judicialauthority’ — from judges generally. Clause 7 is the Government’s chosen instrument. It bites whenever courts are considering ‘incompatibility questions’ — that is, questions about whether a public authority is acting compatibly with Convention rights or whether legislation is compatible with such rights — and seeks significantly to limit the courts’ room for manoeuvre.
Often, such cases will involve questions of proportionality, one element of which concerns asking whether a given legislative provision, policy or decision strikes a fair balance between a given right and a public interest with which the right is in tension. Under existing domestic case law, courts will ‘defer’ where appropriate on such questions, including on democratic grounds (that is, in recognition of the democratic credentials of the decision maker and acknowledging that some questions of ‘fair balance’ are more suited to democratic decision). Clause 7, however, seeks to go a great deal further. In particular, it requires courts, when deciding ‘incompatibility questions’, to treat Parliament, by having enacted the relevant legislation, has having ‘decided’ that the Act strikes an appropriate balance between the relevant competing factors. It also requires courts to ‘give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament’.
This appears to be a statutory attempt to draw the teeth from the proportionality test — a test that is inherent in many of the Convention rights, and whose application is necessary if Convention rights are to given their proper effect. However, while the legislative policy seems plain, it remains to be seen what courts will do with this. It does not seem to me to be a knock out blow to proportionality by any means. It does not, for instance, touch other elements of the test (such as asking whether the measure is necessary). Moreover, it is one thing for courts to ‘regard Parliament as having decided’ that an appropriate balance has been struck, but the Bill does not in terms preclude courts from making their own mind up about whether it was appropriate for Parliament to have reached such a view in the first place. My expectation, therefore, is that while clause 7 may blunt the application of the proportionality doctrine in some instances, it does not strike it a fatal blow.
The bigger picture
Finally, then, what of the bigger picture? What is the overall impact of this legislation likely to be, and what does it tell us more generally about the UK constitution today?
Sending rights back?
If the aim of the HRA was to ‘bring rights home’, the aim of the Bill appears to be to send them back by substantially decoupling the UK’s domestic human rights regime from the Strasbourg system, while continuing to pay lip service to that system by remaining a State Party to the Convention. This policy is pursued by means of the bifurcated approach set out in this post. The Bill projects a veneer of continuity: the UK remains a Party to the ECHR; the same Convention rights are protected by the Bill as by the HRA; courts remain able to issue declarations of incompatibility; public authorities remain obliged to act in accordance with the Convention rights. Dig a little, however, and it becomes clear that similarities between the Bill and the HRA are largely superficial.
That is so thanks to a pincer movement effected by the Bill that undermines both the ECtHR and the domestic courts. The ECtHR is straightforwardly marginalised (not least by removing any obligation on UK courts to take account of its case law and by explicitly licensing them to depart from it). Domestic courts, meanwhile, are marginalised in a variety of ways: although the Supreme Court is vaunted as the ‘ultimate judicial authority’, the kicker is in that word ‘judicial’ — because far from making domestic courts the ultimate authority on questions of rights, the Bill is attempt to wrest control from courts generally, not just the ECtHR. As I have suggested in this post, the domestic aspect of the pincer movement is effected through a combination of diminishing the courts’ powers — the complete removal of the section 3 interpretive power/obligation being a prime example — and micromanagement of the domestic courts’ handling of Convention cases, whether by attempting to pull the teeth from the proportionality test in the name of parliamentary democracy or baldly preventing the courts from giving effect to new (and in many cases existing) positive obligations.
Political hubris and legal reality
In political terms, the Bill might — indeed, presumably does — make perfect sense from the Government’s perspective. It will make it more difficult to bring successful domestic human rights claims, particularly for those claimants who are considered ‘undeserving’ (clause 6, for instance, tilts the scales against prisoners seeking to bring certain human rights claims, while clause 17 is a ham-fisted attempt to give effect to the political mantra that ‘rights come with responsibilities’). This, in turn, will make successful applications to the Strasbourg Court more likely — at which point adverse judgments will presumably be the ‘fault’ of the ‘foreign judges’. The legal problem, however, is that the Bill rests on a false premise — namely, that it is possible to legislate domestically in order somehow to manipulate or magic away treaty obligations that are binding upon the UK as a matter of international law.
The reality is that that is simply impossible. Even if individuals are less able to bring human rights claims in domestic courts, and even if those courts are less able to hold that Convention rights have been breached, the legal reality — that the UK is bound by the ECHR for as long as it remains a State Party — will not change as a result of the Bill. If the Government’s view is that the ECHR is a bad system, or that involving judges in the protection of human rights is inherently objectionable, it should have the courage of its convictions and say so. I happen to disagree with both of those views, but for the Government to advance one or both of them would at least have the merit of intellectual honesty.
Instead, what we find in the Bill of Rights Bill is an example of Boris Johnson’s ‘cakeist’ philosophy — which extols the merits of both having one’s cake and eating it — writ large. The UK, we are told, remains fully committed to the ECHR and the Supreme Court is lauded as the ultimate judicial authority when it comes to rights questions. The reality, however, is very different. Once the political hubris is stripped away and the Bill is examined through a legal lens, the metaphysical infeasibility of cakeism becomes all too apparent and the Bill of Rights can be seen for what it is: a piece of legislation that the Government claims enhances human rights protection but which in fact significantly diminishes it. If, as is likely, this results in more applications to (and UK losses in) the Strasbourg Court, the Government will then face a stark choice between accepting the Court’s judgments — thereby exploding the myth that the Bill magically enabled the UK to loosen its international obligations via domestic legislation — or defying them and finding itself in breach of international law. That is the hard legal reality, and no amount of political bluster by the Justice Secretary about ‘strengthen[ing] traditional UK rights’ or preventing the Supreme Court’s ‘subordinat[ion] to Strasbourg’ will change that.
Accountability and authoritarianism
I conclude with a broader point, which I recently noted in a post concerning the resignation of the Independent Adviser on Ministerial Interests. The current UK Government is increasingly showing itself to be allergic to scrutiny. When Parliament stood up to it in relation to Brexit, the Government unlawfully attempted to prorogue, or suspend, Parliament, in flagrant breach of fundamental constitutional principle. When the Supreme Court said as much, the Government bridled and made noises about limiting the courts’ powers of judicial review. When the last-but-one Independent Adviser on Ministerial Interests reached an inconvenient conclusion (namely, that the Home Secretary had breached the Ministerial Code by bullying officials), the Prime Minister rejected it, prompting the Adviser’s resignation. When the Prime Minister was found to have breached the criminal law, he rewrote the Ministerial Code, removing references to integrity and honesty. And when, just last week, the ECtHR intervened in relation to the Rwanda deportations, the Government apparently responded by introducing legislation, in the form of clause 24 of the current Bill, ordering British courts to ignore such interventions. The pattern, then, is undeniable: the Government dislikes scrutiny and views accountability mechanisms as threats that should be neutralised or at least marginalised.
Hence we now have a Bill that seeks to diminish the domestic legal impact of the transnational human rights system of which the UK has chosen — and agreed in international law — to be a part, and which seeks at the same time to make significant inroads into the powers of domestic courts to uphold fundamental rights. All of this is infused with the notion of ‘taking back control’ from those — ‘foreign’ judges in particular, but also courts and lawyers more generally — who are viewed as an inconvenience at best, an illegitimate interference at worst. The Government claims to be doing this in the name of — and the Bill explicitly references — ‘parliamentary democracy’. But it is becoming abundantly clear that the true objective underpinning this Bill (and the Government’s wider project) concerns not the so-called restoration of parliamentary sovereignty or the strengthening of democracy, but the entrenchment of a form of executive hegemony — one that smacks of authoritarian resistance to scrutiny and is antithetical to the best traditions of the British constitution.