This is not a proposal for “a Bill of Rights” – this is semi-waffle in support of vanity legislation
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.
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.
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.”
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 QC (@GeorgePeretzQC) 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”.
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.
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.
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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