HUMPTY DUMPTY AND THE BILL OF RIGHTS BILL – A PERSONAL VIEW
“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all’.”
Lewis Carrol – Through the Looking Glass
I start this blog with a caveat. As an Editor’s Blog, this piece contains my own views about this Bill and, whilst Nagalro have been kind enough to allow me space to set out those views, the piece and the opinions remain mine alone.
After a consultation, the government has now published its Bill of Rights Bill. Although it does not, as some of the candidates for the Conservative leader had proposed, include the UK’s withdrawal from the European Convention on Human Rights, it does include the revocation of the Human Rights Act 1998, re-enacting the Convention into UK law within a significantly different framework. I will argue that this Bill significantly reduces the rights of individuals, flagrantly breaches this country’s obligations under the European Convention on Human Rights and harms the welfare of children.
It is difficult to underestimate the impact which the Human Rights Act has made to the practice of family law, particularly in cases regarding children. Any change to this must be a matter of concern to all those who practice in this field.
What’s in a name?
Let’s start with the name of the Bill. It seems vaguely familiar to most of us and so that is perhaps the best place to start. The Bill of Rights 1689 is one of the legal foundations for our, largely unwritten, constitution and was the basis upon which James II was ousted from the throne by Parliament and replaced by the Dutchman, William of Orange, and his wife, Mary. Before he could ascend to the throne, William had to accept constraints on his power as king; becoming an early constitutional monarch. The main provisions, apart from the succession of the Crown, included:
- That it was illegal for the Crown to suspend laws or dispense with laws without the consent of parliament;
- That taxes could only be levied by parliament;
- Prohibiting the use of ‘cruel and unusual punishments’.
- That there should be free elections of MPs (although universal suffrage was more than two hundred years away);
- That there should be complete freedom of speech within parliamentary proceedings;
- That Protestants should have the right to have arms for their defence; and
- That there should be no keeping of a standing army in peacetime without the consent of parliament.
Aside from prohibiting cruel and unusual punishment, which did not prevent hanging, flogging or the use of the gibbet, there is very little about the rights of individuals in the original Bill of Rights, dealing, as it does, with the relationship between the executive and the legislature, in this case, the Crown and Parliament.
This makes me ask, why would a twenty-first-century administration wish to dress up in seventeenth-century clothes? The question raises more than a legislative ‘wardrobe malfunction’. In 2019 we have seen the government illegally proroguing, or suspending, parliament when they could not get their own way. On 24 November 2020, the government was found to have acted unlawfully when it suspended many vital children’s rights and safeguards by the Children (Coronavirus) (Amendment) Regulations 2020. In these, and other matters, the executive arm of government has shown the kind of authoritarian approach that the original Bill of Rights was intended to restrain.
Of course, these issues, and many more, could have been discussed with the Justice Secretary, Dominic Raab, who introduced the Bill, when he was to attend parliament’s Joint Committee on Human Rights on 20 July 2022. Unfortunately, he cancelled his attendance with just less than a week’s notice.
How does the Convention work in the UK?
The UK was one of the founders of the European Convention on Human Rights (ECHR) and has been one of the leading members of the Council of Europe. These structures are older than, and entirely separate from, the European Union from which we left in 2021. The Council of Europe contains 46 member-states, covering a population of around 675 million people. The only European states not included in the Council of Europe are Belarus and Russia. The latter country withdrew from the Council of Europe on 15 March 2022, following its invasion of Ukraine. Russia says that it is planning its own domestic ‘alternative’ to the ECHR.
Before the ECHR was brought into UK law by the Human Rights Act 1998, the detailed terms of the Convention could not be directly considered and applied by the UK courts. If anyone complained that their rights under the ECHR were infringed they could only raise this by proceedings in the European Court of Human Rights (ECtHR) in Strasbourg. This process was long and costly. In Rights Brought Home: The Human Rights Bill (HMSO, October 1997) the government at the time estimated that the average cost of bringing a petition to the ECtHR was £30,000 and took around five years to resolve.
The effect of the Human Rights Act has been that, in the family courts, we can discuss, for example, the impact of Article 8 rights to family life and the need for proportionality in public law orders. When reporters seek the lifting of reporting restrictions we can debate how the child’s article 8 rights can be balanced with the press’s Article 10 rights of freedom of expression. As you look at the key court decisions about children throughout this century it is very soon apparent that the development of our current practices would have been much more difficult without the Human Rights Act.
The ability to deal with ECHR issues by our own courts has also significantly reduced the number of cases brought against the UK before the ECtHR. Since 2017, the number of cases brought against the UK has been the amongst lowest of the 47 member-states. The number of successful claims against the UK has also been the lowest of any member of the Council of Europe. In 2020, there were just 124 pending cases against the UK, compared with 3,469 cases against Italy and 11,750 against Turkey.
According to Joanna Cherry QC MP, the Chair of the Joint Committee on Human Rights, in her letter to Dominic Raab on 30 June 2022, ‘the HRA is viewed internationally as a gold standard and a model example of how human rights can be effectively embedded into domestic law and practice.’ She argues, in the same letter, that ‘the HRA is functioning as intended as it enables human rights to be enforced effectively in the UK with little recourse needed to the European Court of Human Rights’.
What we also know from The Independent Human Rights Act Review (December 2021) is that there is a mutually respectful relationship between the ECtHR and the courts of the UK. Political rhetoric would have us believe that the UK courts are dictated to by a foreign court. The truth is that such statements probably tell us more about the mindset of those making these statements than the reality of the situation. Practice shows the domestic courts and ECtHR learning from and influencing each other and the ECtHR holding the UK courts and judges in high regard.
It may also help to explain the UK’s international legal obligations arising from membership of the ECHR. As a signatory to the ECHR, the UK is obliged by Article 1 of the Convention to ‘secure to everyone in their jurisdiction the rights and freedoms’ set out in the Convention and (Article 46) to abide by any final judgment of the ECtHR in any case to which they are parties. In this way, the 46 member-states ensure that they mutually protect the rights of their citizens.
So, if it ain’t broke ...?
On 21 June 2022, the Justice Secretary, Dominic Raab MP, wrote a piece in The Sun, regarding the Bill. He begins by complaining that the first deportation flight to Rwanda had been prevented by the ECtHR and says that:
We are members of the European Convention of Human Rights — but that convention does not grant the Strasbourg court any power of injunction over the UK. So, our Bill of Rights will clarify the remit of Strasbourg and ensure our courts have the final say.
Now, Dominic Raab is a solicitor and has a team of lawyers to help him if his legal skills are getting a little rusty. He must know that, legally, this passage is nonsense. Article 46 of the ECHR absolutely does grant the ECtHR a power of injunction. It is the whole point of the Council of Europe and the ECHR: that there should be an organisation above individual state authorities able to protect and effectively restrain their behaviour against individuals. If you do not want to have that oversight then be honest about your plans, leave the ECHR and line up with Mr Putin for a ‘domestic alternative’.
When Dominic Raab introduced the Bill in Parliament he said that it is ‘the next chapter in the evolution and strengthening of our human rights framework’ In fact, this Bill is nothing to do with enhancing the rights of UK citizens. It emanates from an increasingly paranoid and authoritarian administration seeking to prevent any oversight or restraint over its actions. Judges become ‘Enemies of the People’; those representing asylum-seekers become ‘lefty-lawyers’. A leaked paper, from the Ministry of Justice, suggests that Mr Raab believes the Judicial Review and Courts Act 2022 did not go far enough and that there should be further barriers against any attempts to keep the government within the law. The background to the Bill cannot be ignored.
When you turn to the Explanatory Notes for the Bill, the Overview tells us that whilst the Bill ‘will continue to give effect to the same rights and freedoms’ contained in the ECHR, it will also ‘ensure rights are not interpreted over-expansively’. Billie Holliday put it more clearly than I could when, in her lyrics from God Bless the Child, she wrote:
‘Rich relations give crusts of bread and such
You can help yourself, but don't take too much’
The problem, it would seem, is that we have been taking too much of these rights and freedoms and we must learn to know our place.
A mandate for reform?
Section 3 of the Human Rights Act 1998 requires that, when a court is interpreting a piece of domestic legislation, it should, ‘so far as it is possible to do so’, apply the statute or regulation ‘in a way which is compatible with the Convention rights’. Under the Bill of Rights, this provision is repealed and there is no analogous replacement. This section has given the family courts considerable scope to adapt legislation to fit with the ECHR without having to wait for domestic legislation to be amended. Examples are easily found. In Re B (A Child)  UKSC 33 Lady Hale concluded that the test for severing the relationship between a parent and child was ‘where nothing else will do’. and, more recently, the need to consider proportionality when granting a care order was examined by the Supreme Court in Re H-W (Children)  UKSC 17.
On 14 December 2021, the Government published a consultation on the reform of the Human Rights Act. When the consultation closed, over 12,000 responses had been received. The consultation asked whether there should be any change to s3 of the Act and 79% of respondents were against such a change. The Independent Human Rights Act Review and Parliament’s own Joint Committee on Human Rights both advised against any change to s3 of the HRA 1998. Despite this, the Bill contains the removal of this provision.
Section 19 of the Human Rights Act 1998 contains a requirement that a Minister introducing a Bill into Parliament should ‘make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights’ or, alternatively, that the Minister cannot make such a statement but still wishes to proceed with the Bill. Indeed, the Bill of Rights Bill opens with a statement from Dominic Raab that ‘in my view the provisions of the Bill of Rights Bill are compatible with the Convention rights’. Less than 2% of the respondents to the consultation thought that any changes should be made to section 19. Notwithstanding this, the Government proposes to abolish this provision on the basis that ‘this change will allow and encourage innovative and creative policy-making which better achieves Government aims’ and (presumably) unfettered by any consideration of the rights of others. It is a small matter, perhaps, but it speaks volumes about the importance of the rights of the individual citizens.
Rights and responsibilities
At the beginning of the Explanatory Notes for the Bill, the Overview says that it will ‘recognise that responsibilities exist alongside rights’. Essentially, you cannot accept benefits without complying with the corresponding obligations; you cannot ‘have your cake and eat it’. I argue that this is exactly what the promoters of this legislations see to do by both ignoring the country’s obligations under the Convention and wishing to remain as a member.
As I mentioned earlier, article 46 of the ECHR requires that:
‘The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.’
The article continues to set out the consequences if a state fails to abide by a decision of the ECtHR. In the light of the UK’s obligations, which are the flip-side of the membership benefits, it is difficult to make any sense of clause 1(2) of the Bill stating that:
‘(2) In particular, this Act clarifies and re-balances the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament by ensuring—
(a) that it is the Supreme Court (and not the European Court of Human Rights) that determines the meaning and effect of Convention rights for the purposes of domestic law (see section 3(1));
(b) that courts are no longer required to read and give effect to legislation, so far as possible, in a way which is compatible with the Convention rights (see paragraph 2 of Schedule 5, which repeals section 3 of the Human Rights Act 1998);
(c) that courts must give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about the balance between different policy aims, different Convention rights and Convention rights of different persons are properly made by Parliament (see section 7).’
Seventy-odd years ago, the UK, by agreeing to join the ECHR, decided that it would abide by the decisions of the ECtHR and nothing that Parliament can do to change that, short of leaving the Convention.
Article 1 of the ECHR sets out the universality of the state’s obligations towards everyone within its jurisdiction. This government, however, prefers to divide people into the deserving and undeserving. We have seen this in the Nationality and Borders Act 2022 where there is a two-tier system of asylum with lower levels of protection accorded to those found undeserving because they arrived in what the Government regards as the wrong way.
Clause 8 of the Bill deals specifically with the use of Article 8 of the ECHR by a ‘foreign criminal’ seeking to avoid deportation. Under s32(5) UK Borders Act 2007, the Home Secretary must make a deportation order against a ‘foreign criminal’ who has been sentenced to 12 months imprisonment or more. There are exceptions, most notably that the removal of the individual would breach his rights under the ECHR and in particular rights under Article 8. The judge dealing with such an application would have to balance the rights of the individual with the public interest in deporting them.
The proposal in clause 8 of the Bill is that Article 8 rights of the criminal (and, unavoidably, his or her child) will only prevail against the public interest to deport if it would result in ‘manifest harm to a qualifying member of [the criminal]’s family that is so extreme that the harm would override the otherwise paramount public interest’ in removing them. Only in ‘the most compelling circumstances’ will the interests of a family member other than a child be sufficient and for a child, potentially left behind, the harm to them must be ‘exceptional and overwhelming’ and ‘is incapable of being mitigated to any significant extent or is otherwise irreversible’.
The objection to this provision is that the convicted criminal’s rights and (by necessity) his children are accorded less protection by the state than to others within the UK. We would not, therefore, be complying with Article 1 of the Convention. The children, whose rights are diminished because of their parent’s misconduct, are by definition quite innocent but their rights will be less than those of their peers.
In his article in The Sun, Dominic Raab rails against the case of a Zimbabwean national who ‘used an elastic reading of the right to family life — imported from Strasbourg, magnified by Labour’s Human Rights Act — to stay in the UK’. Leaving aside the dubious legal accuracy of this statement, the Government’s evidence for making such a change was carefully examined (on a case-by-case basis) by Parliament’s Joint Committee on Human Rights and reported on in its report published on 30 March 2022. Their findings deserve to be read in full:
‘232. These cases cited by the Government show that the domestic courts and the ECtHR take account of both the rights of the individual and the public interest in deportation, applying the stringent tests laid out in the statutory framework. Inevitably there will be cases where the rights of the individual outweigh the public interest in deportation and the Government does not agree with the outcome, but this is not a sufficient justification for reforming the system by further eroding the protection of rights. The current statutory framework creates a high threshold and it will be rare for Article 8 to outweigh the public interest in deportation.’
These breaches of the country’s obligations under international law are not minor or accidental; they are quite deliberate, and egregious and seem to demonstrate a belief that laws do not apply to this administration.
Children and privacy in the courts
When Dominic Raab stood up to introduce this Bill in the House of Commons on 22 June 2022, the Speaker, Sir Lindsay Hoyle, rebuked him as follows:
‘I am extremely disappointed that, once again, an important Government policy has been presented to the media before being presented to this House. Why the BBC and Sky News are more important, I will never know. I say again that this is simply not acceptable.
One thing that did not change in the recently revised ministerial code is this important statement:
“When Parliament is in session, the most important announcements of Government policy should be made, in the first instance, in Parliament.”
Yet again, the media have been the first to know.’
When writing in The Sun on 21 June 2022, the day before the Bill was introduced in Parliament, Dominic Raab said that:
‘…we will strengthen traditional UK rights such as freedom of speech — under attack, from expanding privacy law to stifling political correctness…’
Now, the Speaker did not know why Mr Raab had chosen to put the media before his duties to Parliament and so it would be wrong for me to speculate. What we do know is that clause 4(1) of the Bill says that:
- When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.
This provision, if enacted, would replace the provisions at s12(4) of the Human Rights Act 1998. That section says that ‘the court must have particular regard to the Convention right to freedom of expression’ (emphasis added). Is giving ‘great weight’ different from having ‘particular regard’? The Explanatory Notes, published with the Bill do not indicate what was intended.
This issue is likely to be of importance when future applications are made to release reporting restrictions in Children Act cases. These cases centre around the conflicting demands of Article 8 and Article 10 of the ECHR. The current position, both in the UK courts and in the ECtHR is that neither of these articles has any precedence over the other; there is no ‘trump card’. Instead, we have a fairly well-established system for balancing these two rights, based on the circumstances of the individual case. The approach is laid out by the House of Lords in Re S (A Child) (Identification: Restrictions on Publication)  1 AC 593.
If this Bill were to become law, we would face years of uncertainty for children, until the meaning of this provision is worked out. Amidst the uncertainty, children may well be harmed by a publication which should not have taken place, but we will not be able to put the genie back in the bottle. If the courts are driven to conclude that Parliament did intend Article 10 to be a trump card, contrary to the previous decisions of the ECtHR, we are setting up a costly and time-consuming dispute between the government of the day and the ECtHR. I do not know who profits from that but it is absolutely certain that the children will be the losers.
This is a substantial Bill and I have not attempted to analyse each provision. What is very clear however is that:
- The intention of the Bill is to increase the powers of the Government and to reduce the rights of the individual. This is not what the Deputy Prime Minister says but that is what the Bill actually does.
- There is wilful blindness to the legal realities of membership of the ECHR. It is all well and good for Mr Raab to lecture about rights and responsibilities; he seems to find it more difficult to apply this to the government of which he is a member.
- For reasons which are hard to fathom, the Government seems intent on picking a fight with the ECtHR and to act contrary to its obligations under international law. I do not see the profit in that or how the population will benefit.
- The drafting of the Bill gives precious little thought to children or their welfare and is quite prepared to sacrifice them on the altar of political gestures.
(Photo credit: San Sharma on Flickr – Creative Commons licence)