Last year, I highlighted three ways in which the ‘big bang’ strategy behind passing a new ‘British Bill of Rights’ could backfire on the Conservatives.
First, there was the risk it simply wouldn’t deliver what the Government’s supporters were hoping for; second, that it might empower the most activist sort of judge to freelance more, not less; third, that the Tories would now own human rights law in the minds of sceptical voters.
Yesterday, Dominic Raab published the version of the Bill that he will be taking forward. It is in somewhat better shape than those December reports suggested. It is still not obviously the best approach for the sort of overhaul he wants to effect.
The politics
In fairness, the Justice Secretary has set himself a very difficult task. How do you overhaul human rights law without withdrawing from the European Convention on Human Rights and fully repatriating our body of law?
Despite the rumblings from parts of the Government after the recent Rwanda ruling, withdrawing from the ECHR is not something which could be quickly or easily done even if there was a consensus around doing it, which there is not.
The Bill of Rights, on the other hand, is something behind which there seems to be a relatively broad Conservative coalition, and it can probably be delivered by the next election.
Moreover, since December the scope of the Bill has been pared back in an important way. At one point there were plans to allow judges to look at rulings from other common law jurisdictions, such as Canada, when making rulings.
This would potentially have given judges more scope for creating a distinctly British scheme of rights, at least inasmuch as it extended beyond the scheme of the ECHR. But it would do that by empowering the more activist sort of judge, and had the danger of being a massive own goal.
Happily, this idea has not made it into the final bill, largely removing one of the three dangers I highlighted in December.
But this means there is now significant tension between the reality of what the Ministry of Justice is attempting, which is largely a set of technical adjustments to the existing human rights regime, and the grand promise implicit in a ‘bill of rights’.
The result is a Bill which is much longer than it needed to be, and many of which’s clauses are underpowered or functionally inoperative – phrases such as “give great weight to” are not nearly specific enough to reliably guide judicial behaviour.
The good in the Bill
In its current form, the Bill of Rights Bill does make some useful changes. For example, Clause 3(3)(a) restricts the courts’ ability to gold-plate Strasbourg rights:
“A court determining a question which has arisen in connection with a Convention right— (a) may not adopt an interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it;”
Then there is the repeal of Section 19 of the Human Rights Act, which governs the need for the Government to produce ‘certificates of compatibility’ affirming their confidence that a Bill conforms to the Convention rights.
The new regime will lower that pre-legislative barrier, making it more likely that Parliament might (as it already has the power to do, e.g. prisoner voting) pass laws which deviate from the will of Strasbourg.
In other areas, it attempts to do something worthwhile, but in a way which might backfire on the Government.
Most obviously, the Bill will prevent the courts from amending legislation they rule to be incompatible with it, as they currently can under the Human Rights Act. Instead, they can merely make a declaration of incompatibility and send it back to Parliament to make a positive decision about what the law ought to be.
This is an important democratic principle and addresses a problematic aspect of the current order, which was originally only meant to apply to old legislation which preceded the HRA but has started to creep beyond that.
However, critics of the Bill worry that this provision might do more harm than good in practice.
The bad of the Bill
Why? Because at present, complainants have to have exhausted avenues for a ‘domestic remedy’ before taking their case to Strasbourg, and the European Court of Human Rights is relatively reluctant to simply overrule a domestic court if they think it has interpreted the Convention rights fairly.
But if British courts can’t actually overturn whatever the problematic law is in a given case, the fear is that they will not actually be deemed capable of offering a ‘domestic remedy’, allowing people to skip them altogether and take their case straight to Strasbourg, which would then rule without a British judgment as a frame of reference.
(Of course, in theory Parliament could simply withstand the resulting declarations of incompatibility, has it has on prisoner voting. But based on past experience, where it has done this precisely once, it is very unlikely this drum beat of adverse judgments would do anything other than drive changes in law.)
Nor is this the only area where the Bill seems to be trying to deliver the benefits of quitting the ECHR without actually doing so. The operations of the Armed Forces overseas is another example.
Whilst it is true that the Convention never originally applied to military operations – the Strasbourg court simply granted itself that extraterritorial power – there is no getting around the fact that it now does apply to them unless the court changes its mind.
So whilst Section 14, governing the Armed Forces, is one of the effectively drafted parts of the legislation, it is likely storing up trouble for the future.
Why this Bill?
The Government could probably have compiled the effective parts of the Bill of Rights into a much shorter bill of amendments to the HRA. This could have delivered most of the practical benefits whilst avoiding many of the pitfalls.
It would also have meant that the broad scheme of human rights law, and any attendant discontents, would have continued to stem from the Human Rights Act, which is widely understood to be a Labour creation, rather than legislation passed by a Conservative government.
Such a series of granular reforms would have been less eye-catching, and might perhaps have been less saleable at the next election. But the risk of making a high-profile move such as this is that if it doesn’t deliver on public expectations, it doesn’t leave the Government anywhere to hide.
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