What are Human Rights? How to we protect the liberties of the individual and the sovereignty of the nation? The perennial debate over how to square this circle, how to affirm these principles and beliefs we hold dear has brought us to the current juncture, with the Human Rights Act (1998), at one stage, close to being repealed by the then-Lord Chancellor, Dominic Raab, and being replaced with a 'British Bill of Rights Bill'. Now, that Bill, in one of the first acts of the Truss Government, has been shelved.
The Bruges Group Director, Robert Oulds, spoke to:
- The Rt Hon David Jones MP: Deputy Chairman, ERG; formerly Secretary of State for Wales
- The Rt Hon Sir John Hayes CBE MP: MP for South Holland and The Deepings; formerly Minister for Security
- Sir Christopher Chope OBE MP: Barrister and MP for Christchurch
- Prof Gavin Phillipson SFHEA BA(Sons) CPE LLM: Professor of Law, University of Bristol
David Jones MP discussed the now-shelved Bill in the context of the European Convention of Human Rights, and the good intentions of its roots. He reiterated how the former Justice Secretary's proposed Bill of Rights did not seek to amend the contents of the ECHR itself or the UK's obligations under it. "The purpose of the bill, rather, was to change the approach of domestic courts to Convention rights", he argues. He reiterated Britain's history of defending human rights on a statutory level, from the original Bill of Rights to the Representation of the People Act, as well as how the common law played a role.
"The domestic courts are not bound to follow judgement of the Strasbourg courts, but in practice they have a tendency to do so" - the Rt Hon David Jones MP, attributing this to the Human Rights Act.
Section 3 of the Act requires the courts to, "so far as possible", interpret laws "in a way which is compatible with convention rights". The phrase "so far as possible", Jones blames for helping create the standard of deferring to compatibility within the courts. This provides an opportunity of courts to frustrate the will of Parliament. The HRA's misinterpretation of Acts of Parliament, which depended on legislative intention at the time of enactment, meant domestic judges were able to rewrite existing British laws to "give effect to new rights in Strasbourg." Jones quoted Francis Bennion, a former Barrister and Parliamentary Counsel to argue that Parliamentary Sovereignty was at risk as a result of the use of Convention rights through the HRA.
The British Bill of Rights Act would have merely repealed the Human Rights Act but the leeway for courts remained, he argued. The power of courts to interpret Convention rights had been removed and the ability of British courts to depart from the ECtHR's case law. The Bill's "main thrust" was to uphold that primacy of the British Parliament that had been eroded by the Human Rights Act's application of Convention rights. "Those who seek to gain the system would be prevented from doing so". He noted the position of Northern Ireland and Convention Rights, especially in light of the Belfast Agreement - which included a commitment to incorporate NI law into the ECHR, including the courts' powers to overrule legislation in the Northern Ireland Assembly.
Sir Christopher Chope MP highlighted the new Home Secretary Suella Braverman's priorities on resolving the issue of illegal immigration. He noted that the 2019 manifesto pledged to update the Human Rights Act. Sir Christopher used the example of a former Italian ECtHR judge who believed the ECtHR wasn't, in fact, a hierarchical system, but instead a cooperative system. The issue therein was that she was speaking with a view that member states' courts would comply with what the European Court of Human Rights thought was right.
Sir Christopher, while stating his enthusiasm for the now-shelved British Bill of Rights, argues that it still wouldn't have prevented people from taking their case to the European Court of Human Rights - especially cases considered trivial, that might not be able to be brought before a domestic court. He remained optimistic about the new Home Secretary's plan to resolve this gaping issue, despite initial fears that this might turn out to be a constant battle.
Former Minister Sir John Hayes concurred with David Jones' interpretation of what the Bill was meant to do and Sir Christopher's 'advocacy for the supremacy of Parliament'. Sir John disagreed with the understanding of 'natural rights' as being natural and universal, while agreeing with core fundamental rights: "This is very important for us as Conservatives and very important for our polity and in society" - however, he argued that rights were naturally assumed; "They did not bring from the ether". He emphasised how the rights Britons now enjoy were guaranteed by a combination of common law and Parliament. It was the horrors of the war that brought in the need for some supranationalrights - the issue was at what it had become, how it had 'metamorphosed'. "Rather than protecting us from tyranny, [it] has allowed all sorts of criminality to persist, shielded by the advocacy of these rights". He attributes the incorporation of these beliefs to the Human Rights Act and the Blair government - but also Dominic Grieve, the former Tory Attorney-General turned independent.
That 'long tail of Blairism', Sir John argued, encapsulated the Human Rights Act and the Equalities Act, and is the prism through which politics is understood. Hence, there is due acknowledgement for how the British Bill of Rights came about - the issue, however, stood at the Bill's effectiveness. How it attempted to 'shoehorn the power of foreign judges', without leaving the Convention. Sir John suspected that there was an alternative to come up in due course - particularly given the new Home Secretary's role as a figure who has spoken out against the Human Rights Act. Sir John advocated the abolition of the Human Rights Act. "We need to finally understand", Sir John said, "that what really holds society together is not the advocacy of individual interest often described as rights, but what we do communally."
Sir John called for the debate to be seen by a new, more communal paradigm, and not the liberal-left debates of the past, "based on egalitarianism and individualism".
When the MPs were asked if the Bill of Rights was perhaps too liberal, David Jones cited the issues with channel boats and how human rights had been utilised to make difficult the deportation of people without 'considerable difficulty', noting the new Home Secretary's views on the Human Rights Act and the European Convention. Sir John believed that we were likely to see more 'copper bottomed' legislation.
The webinar moved on to Professor Gavin Phillipson of the University of Bristol Law School. Putting the Human Rights Act in an international context, he said it "wouldn't have made the slightest difference to the Rwanda issue" - as it was an ECtHR interim measure. He compared several different types of Human Rights legislation, describing:
- The most entrenched, such as the U.S. and other Western European countries, where courts are given power to invalidate legislation they find violates those rights.
- One step down, which is the 'New Commonwealth Model', a kind of "intermediate position" between pure parliamentary sovereignty and a strong judicial model - which is what the Human Rights Act and the British Bill of Rights would fall under. It would work to 'invite dialogue', such statutory instruments by giving Courts powers to protect rights - but Parliament will retain the final say. This is used in
- Canada (The Charter of Rights and Freedoms and their 'notwithstanding clause'),
- The UK,
- Australian states,
- New Zealand under the Bill of Rights Act 1990
- At the lowest end of the scale is the strongest form of Parliamentary Sovereignty - present in the UK pre-1998, and currently in place in Australia at a Federal level.
Under the Bill of Rights Bill, the UK's position regarding levels of Parliamentary Sovereignty would be stronger, and only surpass New Zealand under the New Zealand Bill of Rights Act 1990 - though there remains some uncertainty as to interpretation of the Bill of Rights Bill. Currently, under the Human Rights Act, there remains the ability for Parliament - if it objected to particular interpretations of the HRA - to restate legislation and clarify matters. Parliament, however, hasn't sought to restore any original meanings of legislation since passing of the Human Rights Act. Prof Phillipson reiterated that while it's rulings of the Supreme Court that bind lower courts - ECtHR rulings don't, though lower British courts have normally followed them. He also highlighted that Strasbourg rulings didn't change domestic law - a change which could only be enacted by Parliament; this would all remain the same under the Human Rights Act and the Bill of Rights Bill.
What would be the effect of the Bill of Rights Bill? Prof Phillipson says it would've weakened the courts' authority to protect Convention rights and shift power back to Parliament - and give Convention rights a narrower scope at home. However, he also argues the UK might start to lose more cases at Strasbourg, and that the Bill "was trying to change things that can't actually done in a way that can't actually be done while we remain adherent to the Convention". He credits the Human Rights Act with "ensuring the UK lost fewer cases at Strasbourg", using statistics from the Joint Committee for Human Rights. Giving Convention rights a more limited meaning through the Bill of Rights Bill, he argues, would've meant more successful rulings against the UK in Strasbourg - Strasbourg, in fact, might have the final say more often.
The degree of legal uncertainty in instances such as Clause 4, designed to give greater free speech protections and discussed by the Bruges Group in the past, meant it would be difficult to determine how Courts were to interpret them. The question of Clause 4, such as, whether free speech or reputation are regarded as more important - or if there are implications of the Defamation Act 2013. He also raised how the Bill attempted to 'micromanage' human rights by "assigning three different levels of weights to particular different rights" - naming Freedom of Religion, Freedom of Speech, and other matters such as Parliamentary Sovereignty. Prof Phillipson also emphasised how the Bill doesn't seek to replace the existing obligation for courts to interpret in line with the ECHR - something not recommended in the Independent Review commissioned by the then-Lord Chancellor Sir Robert Buckland KC MP, which suggested a weaker s3.
Courts might also note that Parliament has chosen to entrench the ECHR obligations into domestic effect, unlike the other treaties agreed to by the UK.
"In a strange sense, [the Bill of Rights] would've actually passed more power to the courts because they would've had to work out what these very strange and complicated provisions meant" - Prof Gavin Phillipson
Was now the right time to depart from the ECHR at a time of war in Ukraine? Should it be a manifesto commitment? David Jones questioned the need for the UK to be under "the fiat of a supranational court".
Sir John also discussed the significance of international law and its effectiveness, arguing that the EU - as an institution with an elevated view - fared in handling the pandemic. However, the Convention and its practical effects have changed - and the consequences today would've been unimaginable in the past, Sir John argued. On the manifesto question, a manifesto commitment on, say, immigration being hindered by the Convention might bring up more complex questions.
Sir Christopher also agreed that a manifesto commitment might be necessary - as this legislation would be an Act of Parliament. The 'notwithstanding' clause in Canada was noteworthy and whether or not the Bill could be amended a 'notwithstanding' clause was discussed.
Responding to questions from the MPs on that 'notwithstanding clause' and the possibility of it being added to the Bill of Rights Bill, Prof Phillipson said that he doubted the Rwanda policy - the main origins of this argument - would necessarily be incompatible with the Convention. The interim order halting the Rwanda flights was one that requested a full hearing on its Convention compatibility. He also noted that the original intent of legislation at the time of enactment wouldn't, in any instance, as circumstances can change.
On the 'notwithstanding' clause, Prof Phillipson also said, responding to question, that the UK wouldn't need to adopt that in legislation as Parliament remains sovereign.
We also discussed the topic of lockdown litigation and the Dolan case (Dolan v. Secretary of State for Health and Social Care) with Prof Phillipson's colleague Dr Robert Craig of the University of Bristol. Dr Craig saw the judges demurring from getting more involved as an example of the 'pendulum swinging away from the Hale era'. He also found it notable that Parliament - especially backbench MPs - was fulfilling its role in the political constitution of the nation. "That is what Parliament should be, that it what Parliament is supposed to do". Responding to the idea that judges serve as a backstop, he said the COVID crisis showed it didn't work in extreme circumstances and ultimately, it was indeed up to Parliament.
Overall, topics from prorogation to judicial activism, and the powers of the courts in the UK were discussed - it was a fruitful discussion where the now-withdrawn Bill of Rights Bill was properly evaluated from a scholarly perspective and from an international perspective. There was an air of optimism about the new government's plans to find means to create a sustainable immigration and border protection policy, and consensus that the government would likely try to find a legislative alternative to the Bill of Rights Bill.