10th May 2022
Today it was announced in the Queen’s Speech that there will be a “Bill of Rights”.
Some are alarmed at this proposal – and warn darkly (and perhaps correctly) that this will be a fundamental attack on the Human Rights Act 1998 and on the protections we have under the European Convention on Human Rights (ECHR), to which that Act gives effect in domestic law.
One plausible consequence of the proposal is that there will no longer be a a law called ‘the Human Rights Act’ in our statute books.
This post, however, will take a sightly different approach.
This post is one more of derision than of alarm.
For the proposal set out today is all rather pathetic.
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Let us start with the Queen’s Speech.
The relevant portion of the speech was this:
“My Government will ensure the constitution is defended. My Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”
There is already a Bill of Rights – at least in the law of England and Wales.
That law from 1688 or1689 (depending on how pedantic you affect to be) is famous and significant, and it is one of few ancient pieces of legislation that those with an interest in such things can name.
Any government bringing forward a new (or revised) Bill of Rights would presumably be proud, promoting the legislation as a highlight of its new parliamentary schedule.
But this latest “Bill of Rights”?
It was 800 words into a 940-word speech
Even in the accompanying briefing for journalists, it made only page 118 of a 140-page document.
The Bill is not so much an initiative, but an afterthought.
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And now we turn to content.
There is no real content.
The government has not published the proposed legislation, and indeed the Ministry of Justice (MoJ) is not in a position to publish the proposed legislation.
The MoJ told me today that the consultation on the reform only closed on 19 April and the responses are still being reviewed.
This lack of content can also be seen in the briefing note:
“The purpose of the Bill is to:
● Introduce a Bill of Rights which will ensure our human rights framework meets the needs of the society it serves and commands public confidence.
● End the abuse of the human rights framework and restore some common sense to our justice system.
The main benefits of the Bill would be:
● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate.
● Curbing the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest.
● Reducing unnecessary litigation and avoiding undue risk aversion for bodies delivering public services.
● Tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.
The main elements of the Bill are:
● Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.
● Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.
● Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.
● Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”
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These three groups of bullet-points – ‘purpose…main benefits…main elements’ – indicate padding, and indeed the bullet-points are interchangeable between the sections.
Almost none of the bullet-points are concrete.
If anything they are almost all talking-points.
Some are semi-meaningless waffle – “restore some common sense” and “responsibilities exist alongside rights” are slogans rather than thoughts.
And to the extent any of these bullet-points do have meaning, their import is not to protect rights but to limit rights.
The first “Bill of Rights” in the common-law world whose purpose is to reduce citizens’ rights and to limit their ability to hold the executive to account when it infringes those rights. pic.twitter.com/GMnFA86Nuk
— George Peretz KC 🇺🇦 (@GeorgePeretzKC) May 10, 2022
This is not a “Bill of Rights” but a Bill to, as far as possible, remove or restrict rights.
Only one bullet-point – and you can check if you doubt me – is even positive about substantive rights: “● Defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate”.
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Most significant of all – and this is what the government wants you to miss – is that this Bill of Rights will not substantially affect the position of the ECHR in the United Kingdom.
And this is because the Good Friday Agreement requires the United Kingdom to give effect to the ECHR in Northern Ireland.
If you look carefully at the proposals, there is mention of making sure the courts do not go further than the ECHR – “UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court” – but there is not (express) mention of getting rid of the ECHR in domestic law or any (express) suggestion that the United Kingdom follow Russia in leaving the Council of Europe.
So this proposal is, in part, an exercise in misdirection – an attempt to make it look like the government is ending the Human Rights Act but pretty much keeping the ECHR in domestic law.
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Perhaps the government will put forward a Bill with more concrete proposals.
Perhaps the Lord Chancellor – facing chaos and crises in the court and prisons systems – will achieve his own political priority of replacing the Human Rights Act with some law that does much the same with a different name, but with added (and pointless) tinkering.
Perhaps any of this is worth the effort of new primary legislation – where (if needed) any changes could be done by amendment to the existing legislation.
Perhaps.
But.
The impression given by this proposal is that the new “Bill of Rights” is legislation for the mere sake of legislation.
None of the bullet-points – you can check – individually or together add up to the need for a new statute – let alone something with as hallowed and grandiose a title as a “Bill of Rights”.
On the face of today’s proposals, this is mere vanity legislation.
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“…restore some common sense to our justice system”
Common sense, it is said, is often neither, and I see nothing in this to make me disagree.
I’m not totally sure this is vanity legislation in that the Government is being vain, but rather an attempt to woo the arm of party voters that likes that sort of rhetoric.
Either way, expect a mess and you won’t be disappointed.
“there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court”
Isn’t this section just completely contradictory? Surely it is requiring UK courts to follow “Strasbourg case law” on how expansive the interpretation of rights can be?
Doesn’t it mean that they can be less expansive – i.e., more restrictive – than Strasbourg?
This is my favourite bit! I read it several times, not believing what I’d read the first time
Well, quite.
Can we have a Bill of Rights to protect us from lack of Government regulation of businesses which fail to protect our vital infrastructure?
There are collapsed sewers threatening public health and a large hole in a road hampering ambulance access to the hospital’s A&E within a mile of where I live.
“Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK courts cannot interpret rights in a more expansive manner than the Strasbourg court.”
Isn’t this logically inconsistent. UK case law can’t have primacy if it is limited by Strasbourg case law.
Would anyone care to take a guess as to who is (pushing for/sponsoring) this new piece of legislation?
The obvious candidates would be either Priti Patel or Domonic Raab and the most likely justification would be that this is an early job application and/or posturing by someone who expects to replace the current Lame Duck, ahem Prime Minister, when he be asked or should he decide to step down. But I suppose it could in theory be from someone else?
Obviously we would not expect to see a detailed analysis of perceived failings of the present legal framework being included in the Queen’s Speech, but at the same time it would be interesting and informative if the government could be persuaded to set out, point by point and case by case, why and where they believe the existing legislative framework to be deficient and how they propose new legislation will address those failings.
Given my experience and role, I am, on a fairly regular basis, asked to review and provide feedback on the very explicit documentation that my employer is required to produce and which covers the safe use of technology.
My response to each such request is always the same. After agreeing, I ask for a copy of any existing documentation that is being replaced – with changes marked, a copy of all feedback and enhancement requests submitted since the prior edition was published and dated copy of the latest relevant threat landscape. I then do basic verification: has all feedback been included? Have all defects been closed? Without the baseline, it simply isn’t possible to know if the new version of a document is actually fit for purpose.
It worries me the number of times I have to explain, when my requests for substantiating documents are met with blank stares, that in order for me to be able to evaluate documentation of control practices, I have to be able to consider the draft in the context of the problem it was designed to solve – and the threats and risks already identified that it is intended to mitigate.
I think the same sort of principle has to be applied here. It’s all well and good for the government to come up with some woolly words in the Queen’s Speech, but in so doing the government have basically said that the current legislation is not fit for purpose. Where? For what reasons? Quantify the harm. Who is being disadvantaged? In what ways? Set out precisely what the proposed changes will do and how they will address the harms and concerns thus identified.
And if you can’t do that, well… I think the polite response might be, “D Minus. Stay behind after school and be prepared to re-do your homework…”
sproggit wrote:
> … or Domonic Raab
I’m sorry. I first read your mistype as Daemonic Raab.
Freudian slip.
I was going for Daemonic and I missed, obviously…
Agree totally with this. It’s all basically twaddle, and poorly thought out twaddle at that. But why? Perhaps:
1. Someone is playing to the crowd.
2. It is the product of incompetence.
3. It is the product of malice.
While these are not mutually exclusive, and my rule of thumb is to prefer #2 over #3, when I read the description of the Bill I couldn’t shake the feeling that someone is flying a kite as a precursor to a deliberate but ill-considered and ill-informed attack on my rights.
Interesting as ever. Could the free speech reference enable a full on Fox News UK?
I will personally enjoy not watching mail TV.
Fairly sure that the use of ‘…without proper democratic oversight…’ indicates an intention to make it easier for ministers to over-rule or ignore the courts / “lefty-lawyers”.
I recall the Lord Chancellor’s previous attempt at replacing rights legislation. Forgive me if I don’t hold my breath over this one. Government by announcement, as usual.
By “democratic oversight” is meant ministers using the executive powers of the Crown.
“My Government will ensure the constitution is defended. My Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.”
This is the typical conflation of legislature (HoC) and executive (government of the day) that politicians who are in government like to do, and the unwashed are not savvy enough to see it. Iain Duncan Smith framed the Gina Miller victory as courts stymying Parliament, when it was the opposite. The truth of the matter is revealed in the description of the so-called Bill of Rights. For example:
“● Reducing unnecessary litigation and avoiding undue risk aversion for bodies delivering public services.
● Tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.”
Both of these amount to leaving the government unfettered to do what it wants when it decides to interfere with someone’s rights. The courts only apply the law that Parliament has created. Parliament enacted the Human Rights Act, and the courts have applied it. It has always been open to Parliament to amend or repeal that Act, subject to votes and the political costs, not to mention the Good Friday Agreement, which may now ironically be the only thing propping up the HRA. That paragraph does not bother to mention that Article 8 is more often upholding the rights of a deportee’s family members than the deportee themselves. It’s obtuse twaddle that I hope amounts to nothing.