Dominic Raab’s Bill of Rights Bill is back on the agenda. This Bill gets rid of the Human Rights Act 1998 (HRA) and replaces it with a new Bill of Rights.
The HRA is Parliament’s way of empowering British judges to protect the rights contained in the European Convention on Human Rights (ECHR). Given the delay and expense associated with pursuing a case at the European Court of Human Rights in Strasbourg, this option is unrealistic for many people. It is, therefore, crucial that British residents can effectively resolve human rights grievances in British courts. As the government’s Independent Human Rights Act Review found, the HRA has been successful at this.
However, the Bill overwhelmingly contains provisions which reduce independent scrutiny, enhance unaccountable power, undermine protection for the individual, and weaken the UK’s commitment to the ECHR, while increasing costs and complexity.
I consider just three of them.
Repealing section 3 of the HRA: In my earlier piece, I flagged the government’s proposal to reform section 3 of the HRA. Under section 3, Parliament requires judges to “read and give effect” to legislation “so far as it is possible to do so” to be compatible with human rights. Regrettably, the plan for section 3 is worse than anticipated. The government wants to get rid of this provision entirely. Since judges use section 3 only when other options are not enough to ensure that legislation respects human rights, this represents a significant weakening of protection.
A famous section 3 case is Ghaidan v Godin-Mendoza. This was about a same-sex couple – Hugh Wallwyn-James and Juan Godin-Mendoza – who had lived together in rented accommodation for 18 years. Mr Wallwyn-James was the tenant but sadly died. Under housing legislation at the time, when a tenant died their partner could inherit the tenancy if they were “living with the original tenant as his or her wife or husband”. This included unmarried couples who had a committed relationship resembling marriage. But before the HRA, the courts decided that this did not cover same-sex couples.
In short, the law discriminated. A same-sex partner could face significant rent increases and even eviction, whereas an opposite-sex partner could not. The court used section 3 to give effect to the legislation so that it protected unmarried same-sex couples as well as unmarried opposite-sex couples.
The government’s plan to get rid of section 3 is based on the belief that section 3 allows “straightforward judicial amendment” of legislation and creates uncertainty in how laws are applied. But this ignores empirical evidence that most section 3 interpretations are not adventurous or even controversial. As I have put it elsewhere, the government latches onto one or two cases that it dislikes and wrongly uses them to justify radical change. I agree that legal certainty does matter. But so does the robust protection of human rights by independent courts. In proposing to scrap section 3, the government fails to weigh these competing objectives and arrive at balanced reform.
This is a deeply regrettable overreaction representing a serious weakening of protection for individuals.
Undermining positive obligations: Clause 5 would prohibit judges from recognising any new positive obligations on public bodies. A positive obligation is a duty on public authorities not just to stay out of people’s lives but to do something to protect their human rights, where it is reasonable to expect the state to do so.
An example is the Supreme Court decision in Michael v Chief Constable of South Wales Police. Here the Court decided that where the police had failed to protect a victim of domestic abuse from being murdered, there could be a violation of the right to life (Article 2 ECHR). Similarly, in MS (Pakistan) v Home Secretary, the Supreme Court accepted that the police had a positive obligation to take reasonable steps to protect victims of human trafficking and bring offenders to justice due to the prohibition of slavery and servitude (Article 4 ECHR).
Courts are cautious before imposing positive obligations and restrict them to what is necessary to prevent the violation of a human right. Positive obligations are not licence for ever-expanding government. In Michael, for example, the Supreme Court determined that the police had an obligation to protect the lives of domestic abuse victims only “if the police know or ought to know of an imminent threat of death or personal injury…which they have the means to prevent”.
The government wants to totally prohibit the courts from imposing any new positive obligations on public authorities, no matter how important the rights protected, how minimal the cost, and how modest the action required. Like with section 3, this is a regrettable overreaction. It is a particularly bad move given the systemic failures by the police to exercise their powers adequately, including to protect the right to private property. The protection of important rights – particularly for those least able to protect themselves – will be made harder by the government’s proposal.
Making judges ignore interim measures from Strasbourg: The Bill requires British judges to ignore any interim measure issued by the European Court of Human Rights (Clause 24(3)). An interim measure requires the government to temporarily do something or not do something to secure the protection of human rights. They are granted only on an exceptional basis, when individuals face a real risk of serious and irreversible harm.
Clause 24 is the government’s reaction to the Strasbourg Court issuing an interim measure preventing the deportation of asylum seekers to Rwanda under the government’s Memorandum of Understanding with the Government of the Republic of Rwanda for an Asylum Partnership Arrangement. Equally, interim measures have been issued in circumstances that the government – hopefully – supports. In June 2022, for example, the Strasbourg Court issued an interim measure requiring Russia to take steps to prevent British citizens from being executed by pro-Russian paramilitaries in occupied Ukraine. Presumably, the government did not want Russia to ignore this.
While interim measures are not legally binding, there is no rule that they must be actively ignored, even if a British judge thinks that the measure is relevant to a British issue. Clause 24(3) creates such a rule, undermining judicial independence and the effective protection of human rights.
Bright Blue has expressed strong support for the UK’s membership of the ECHR and this Clause weakens the UK’s commitment to it. If we are to remain a committed and leading defender of the ECHR, requiring British judges to ignore interim measures is not a mature reaction to disagreement about individual decisions. This is particularly so when there are many circumstances – such as the Ukraine case – where interim measures are amply justified.
Across the political spectrum, it is difficult to find supporters of this Bill. It is easy to see why. The Bill weakens the protection of human rights, undermines the UK’s commitment to the ECHR, and reduces independent scrutiny and legal accountability, all while making the law more complicated, uncertain and expensive. There is too much wrong with this Bill to make it worth pursuing. I can imagine HRA reform which enhanced the protection of human rights and promoted the UK’s reputation as a model liberal democracy. This Bill is not that and does not try to be. Those committed to the legal protection of human rights should oppose it.
Lee Marsons is a Research Fellow at the Public Law Project. Views expressed in this article are those of the author, not necessarily those of Bright Blue. [Image: Tingey Injury Law Firm]
