Note: details of a potential “overhaul” of the Human Rights Act, clause by clause, appear below for those who prefer to get straight to the nitty gritty: “Conservative Rights and Obligations – point by point”
The 2022 Queen’s Speech has underlined the intention of the Secretary of State for Justice, Dominic Raab, to “reform” the UK Human Rights Act with a new British “Bill of Rights” (consultation document here).
It is likely that Raab will craft what he calls a distinctly British version of human rights that swings the legal regime subtly in favour of the executive and public bodies, albeit without seeking to withdraw from the broad obligations of the European Convention of Human Rights.
But whether the changes will be acceptable to the European Court of Human Rights is a moot point. If not, Raab will relish the fight, and will point outthat the court already accepts a “margin of appreciation” for the exercise of human rights in individual countries ie the idea that they might be affected by the history and constitutional outlooks of individual nations and hence are not homogenous across all signatories.
Raab will be likely to use this notion to assert his distinctly “British” human rights regime – as suggested (somewhat acerbically) here: All relativists now.
The thinking behind the “overhaul” is that if a new Human Rights Act (or potentially something cross-referring to a new “British Bill of Rights”) were crafted to Britain’s special needs and traditions, that would pass muster in Strasbourg.
As far back as 2014 the Conservative Party said it intended to publish its UK Bill of Rights, a new constitutional “settlement” that it is said will “detoxify” the human rights issue. (Raab was on the Conservative Bill of Rights drafting body.) In the event it did not happen, but it is worth looking at an earlier attempt to reform UK human rights law – the private member’s Bill promoted by the lawyer Charlie Elphicke in 2012. Human Rights Act 1998 (Repeal and Substitution) Bill – publications pdf
This might be the basis of the new official Tory version – and it is rather revealing. Not only does it seek to diminish the influence of the European Court of Human Rights in British courts, it creates a utopian vision of a Conservative society in which the people are required to measure up to standards set by the State and the State can, in certain circumstances, avoid human rights obligations to the people. Those rights become contingent rather than absolute.
The intention is to select a series of items that constitute “British values” – values that will be resistent to the claims of “human rights” made by individuals against the State and its offshoots.
We return to this issue below (see “Moral obligations”) but first must look at the Elphicke view of the rule of law. Much of Elphicke’s version transposes Articles of the European Convention on Human Rights – but with some subtle and not so subtle differences.
Elphicke’s bill was called the “Human Rights Act 1998 (Repeal and Substitution) Bill”. He sought to substitute solely British systems for the ECHR system, allowing merely that Strasbourg judgments may be “taken into account” along with US judgments, Australian judgments and others in the Common Law system. Beyond that, though, the ECHR and Strasbourg judgments are to have no influence. So:
• Section 2(1)(c) says “precedent relating to rights under the Convention shall not be binding when determining a question in connection with a UK right” meaning any past human rights cases applying ECHR principles are not to be seen as a legal precedent.
• Section 17 says no Convention provision or Strasbourg ruling “whenever made or given, shall be regarded as binding on any person [in the UK] (including any public authority)”.
• Section 20(2) gives the Justice Secretary the power to go through past legislation for the purpose of “repeal of references to the Human Rights Act 1998 or terms used in that Act without any replacement provision”.
So, in an Orwellian echo, all trace of the HRA would be expunged from legislation and jurisprudence and be replaced with reference to the new Bill of Rights. Court judgments under the HRA are to be … what? Retrospectively rendered null and void? Should they be struck from the court records so that we collectively forget them? Should those who fell foul of them get their money back?
At Section 3 Elphicke has this:
“When reading and giving effect to legislation in light of the UK rights, the words and sentences of legislation must be construed in accordance with their ordinary and natural meaning.”
Something like this is intended for the official Tory bill. Notes to the Queen’s Speech 2022 say the intent is to guarantee “spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims”. It seems to be a requirement on judges to ignore UK case law and implicitly international treaties when dealing with human rights cases and the legislation applying to them. It also wants to downgrade reference to Strasbourg ECHR human rights cases such that: “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”.
In fact judges are supposed to be independent; they have various ways of construing legislation, only one of which is the “literal” method. The intention of judges is to construe legislation according to the will of Parliament – which is not always the same as according to the literal words (nor the same, by any means, as the will of the current Government). They may, in particular, have to take account of international treaties the UK is signed up to since courts will assume Parliament, in passing legislation, intended to abide by existing treaty obligations. In particular the Human Rights Act Section 3(1) says: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the [European] Convention rights.”
This is the principle of interpretation Elphicke was most keen to get rid of, as is the current government. He told Parliament in March 2013: “What I have sought to do with the settlement proposed in the Bill is take the European convention out of the UK legal system so that it is not directly effective, and need not be applied by UK judges day in, day out.” But in so doing his bill strays even further, seeking to co-opt judges as agents of the state rather than agents of the law. (Compare the Home Secretary’s approach to immigration law: Theresa May’s meaningless statement .)
The problem is, though, that the Human Rights Act was intended to give UK access to ECHR rights through UK courts rather than requiring expensive claims via Strasbourg. Presumably people in Britain will retain the right to go to Strasbourg if denied ECHR rights in Britain – and, according to treaty, the UK Government will have to recognise the Strasbourg court’s findings. People in Britain will be subject to two potentially contradictory legal regimes for human rights.
Elphicke wants the option for the state to turn away those suffering breaches of their rights if those people are not deemed by the state to be worthy of those rights. And this is also in the 2022 Queen’s Speech notes the new legislation would recognise:
“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.”
So a Section of Elphicke’s Bill, 2(2) says:
“A court or tribunal determining a question which has arisen in connection with a UK right shall take into account all the facts and circumstances of the case, including the conduct of the person seeking to assert the UK right (including his adherence to the responsibilities set out in Article 23 of Schedule 1) and whether it is fair, equitable and in the interests of justice for such UK right to be applied in relation to the question at hand.”
This is saying that human rights (rights against the State or the Government or other public authorities) should not necessarily be extended to individuals unless those individuals have conformed to a set of behavioral standards imposed on them by the State – through the “Responsibilities” section of the Bill of Rights (see below).
Elphicke made the point in Parliament regarding the right to family life. His new principle:
“says it is important to preserve it [the right], but it also asks whether they have acted in such a way according to a subjective test to establish whether that right should be allowed as far as that person is concerned. That is a key point, which goes to the heart of why human rights are in such crisis in Britain today, and it is a key plank of the change I am seeking to make through the Bill.” (Emphasis added)
The “subjective test” seems to mean a test based on a notion of British values, a uniquely British morality that should be imposed on British people (and people in Britain) beyond requirements set out in general law. (See: Suddenly Conservatives are relativists now)
That the State should tell you how to behave in your private life is very far from one of Britain’s fundamental values. Conservatives usually object from a libertarian amoralist point of view when it happens. But asserting such values seems to be less about “moral rearmament” than allowing the Government a loophole, pre-knitted into the web of the new written Constitution, when rights claims are made. In particular the application of the moral test would deal with such cases as Trenton Oldfield, Boat Race protester, who included a family rights claim against his deportation.
It is also the thinking behind the Immigration Bill amendment by Dominic Raab the backbencher in 2014 to stop foreign criminals making family rights claims.
So Elphicke’s Article 23 (see below) seems to require a person to obey the law (even though, by definition, laws already require that they be obeyed); render civil and military service when required; uphold public order “without placing himself in significant danger” (implying cautious vigilantism and an end to the English Common Law tradition of not requiring interventionism from ordinary people); not claiming benefits if at all possible; and “rendering help to other persons who are in need of assistance, where reasonable and to the best of his ability, including but not limited to help for elderly or disabled persons”.
Only if you comply with these State-issued requirements are you guaranteed a remedy in court for breaches of your human rights. So what does this mean? May a judge find, for example, that you were indeed tortured by the State, contrary to the Bill of Rights (Article 3), but: “I have heard evidence that you failed to assist the little old lady living next door by doing a spot of shopping for her – case dismissed!”
More significantly (and much more probably) will government lawyers be encouraged to trash the reputation of the victim of human rights abuses rather than disprove their claims? Often it would be the easier option and would play well with the Daily Mail and its ilk who hate to see human rights extended to those it regards as morally culpable. Is introducing irrelevant character material into legal cases among Britain’s great constitutional principles? No, it is the last resort of an oppressive State – and rightly castigated when it happens (such as in rape cases).
Sections 7 and 9: Benefit of the doubt
The whole tenor of the Elphicke document is about giving the authorities a let-out when they breach human rights, giving the State the benefit of the doubt. A remarkable example is Section 7 and Section 9 of the Bill. The former says this:
“It is unlawful for a public authority to act in a way which could not reasonably be regarded, in all the facts and circumstances of the case, as compatible with the UK rights.”
This does not say: “It is unlawful for a public authority to act in a way that would be incompatible with UK rights.” Instead Elphicke is desperate to give the authorities every chance of a get-out, reducing human rights to an argument about what might be “reasonable” rather than fundamental principles. In effect this means there are no human rights; there are only reasonable and unreasonable State and public authority actions. We know that even democratic governments are willing to claim that Executive-inspired murder, imprisonment without trial or torture may be “reasonable” in the sense of necessary, and this clause would allow the State and any other public authority to argue as much.
The ECHR’s Articles do already allow some leeway to governments, exceptions to rights when “necessary in a democratic society” for security purposes for example (though not in the case of the ban on torture, which is an unqualified right). But Section 7 would mean even qualified rights are further qualified by judges deciding what might have been “reasonable” in the circumstances. A test of reasonableness will only ever be to the benefit of the State – an additional protection for the public authorities when they are found to have apparently breached rights.
Section 9 lards the new Constitution with further let-outs for the State. It says:
“In relation to any act of a public authority which the court finds is unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate, unless the act was reasonable with regard to all the circumstances, including a reasonable understanding of primary or subordinate legislation applying to the public authority concerned.”
This has two elements: a) repeating that courts have discretion about whether a breach of human rights is reasonable per se and allowing the denial of a remedy on that basis; and b) that a court may find it reasonable if the public authority’s interpretation of the law is reasonable.
This seems to envisage that there may be laws that might legitimately be interpreted (or rather misinterpreted) as suggesting action in breach of human rights is acceptable. It flies in the face of the old principle that ignorance of the law is no excuse. Here ignorance is an excuse – for the authorities, not individuals – as long as it is based on a reasonable misunderstanding of the law. Currently and traditionally if there is ambiguity, a judge gives a ruling on the law’s meaning and that’s that (subject to appeal). Under such a clause, judges would be in the Alice in Wonderland position of not only construing the law as it is but also as it might seem to be if you perhaps don’t have the benefit of a judge’s legal qualifications. The wrong interpretation will then become the right interpretation (at least retrospectively) since anyone might then claim they had been acting according to a reasonable misapprehension as established by a judge. Again a rather vague notion of “reasonableness” replaces the rule of law.
In effect all this means that the law, where possible, will be construed against the applicant and in favour of the public authority – against the People and for the State.
By winning an election, the Conservatives will claim that their “Constitution” has been duly endorsed by the people. Passing it through Parliament will allow them to claim constitutional validity for it and justify removal of independence from “unaccountable” judges and imposition of “responsibilities” on individuals.
In reality, though, it will be merely an Act of Parliament that may be repealed just as the Conservatives will have repealed the Human Rights Act. It will be held in place, not by any constitutional principle that would embed it and put it beyond parliamentary interference, but by a relentless war of propaganda against immigrants, asylum seekers, terrorists, benefit recipients, prisoners – the gamut of bogeymen who will be conjured up to make a Labour or Liberal Democrat party fearful of entering any election with a promise to repeal the Conservatives’ cod constitution.
The articles of the ECHR and Elphicke’s Bill are compared in some detail below (with the “basic responsibilities” right at the end.
Here is the description of the potential new legislation attached to the Queen’s Speech
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.”
In fact much of the Al’s Law blog charts in some detail the attack on human rights and the consequent erosion of the key principles of a good constitution, the rule of law, the separation of powers and the independence of the judiciary.
This on Keep Calm and Talk Law examines the French duty to rescue and English non-obligatory principle – and suggests there should be pro-obligation legal harmonisation on the issue throughout the EU; it would be paradoxical if the UK Conservatives now adopted it as Elphicke suggested: Letting Drown or Killing by Drowning. There is more on this below towards the end of this article.
Some of the Conservative thinking on human rights is in this Policy Exchange document by Dr Michael Pinto-Duschinsky.
Head of Legal, after the 2014 conference, looks at Conservative confusion over what they want to do about human rights: What might the Tory plan be?
The rule of law and judicial deference are considered here: Bingham’s rule of law: outdated, utopian – and desperately needed now
The attack by several senior members of the judiciary on the ECHR is considered here: Hoffmann, Laws and Sumption: they come to bury the ECHR, not to praise it
Here is the the Gross committee review) on the Human Rights Act
Conservative Rights and Obligations – point by point
Below are set out some of the differences between Elphicke’s human rights (as set out in Schedule 1 to his Bill) and those in the European Convention. His Section 23 obligations are at the end. We do not know how much of this will be replicated in the eventual Bill from the Conservatives but looking at Elphicke’s version gives us a preview of what we should be looking for in terms of where rights are being removed and obligations imposed.
Schedule 1 nominally sets out the human rights a British person can rely on, some similar to those in the European Convention of Human Rights. But there are subtle twists. (The numbering is according to Elphicke’s version.)
Article 4 bans slavery and forced labour just as Article 4 of the ECHR. Both have certain types of employment exempted from the ban such as compulsory military service or civic duties. The Elphicke version adds this: “For the purpose of this Article the term ‘forced or compulsory labour’ shall not include … any work or training required to be performed as a condition of receiving a welfare benefit”.
Does that mean you are currently protected from workfare by the ECHR? No: it is a matter of law and the case of Cait Reilly and Jamieson Wilson has shown that in their circumstances “neither the Work Academy Scheme nor the Community Action Programme breached human rights laws on slavery”. (See this too on the case: Work for benefits and retrospective legislation.) So why is it necessary in Elphicke’s mind to elevate it from a matter of law to a constitutional principle? Because it simplifies matters, perhaps. Cases brought with different evidence might produce different outcomes. If workfare is enshrined as a constitutional right of the State against the People, then there can be no such cases. Basically this is using a constitution to impose a contentious Tory policy, pure and simple.
Article 5 on the Right to Liberty and Security follows the equivalent ECHR Article except for removal of this: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” In other words everyone will have the right not to be unlawfully imprisoned – but the state should not be put under any obligation to compensate those who are. There is of course the ancient Tort of false imprisonment that someone could resort to – so why remove that protection from the human rights sphere? Again the answer is that Elphicke wants to empower the State against the People. If compensation is no longer a human right, then the government, via Parliament but also possibly under other powers, may abolish or mitigate the right to compensation. You retain the right to release and nothing more. (Controversially this is already a matter of legislation in certain cases: see the Victor Nealon miscarriage of justice case.)
Article 8 is the right to respect for privacy and family life, anathema to the Tories because of situations like the alleged cat that allegedly saved an alleged criminal from deportation. The ECHR allows exceptions to this right (and most rights) where “in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country”. Elphicke slips in “immigration control” between “national security” and “public safety”. He gives the state the power to resist family life claims and makes that power one of the bases of a British constitution – resisting immigration as one of Britain’s core fundamental values.
Article 9 Freedom of thought, conscience and religion has the standard conditions in the ECHR version: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”. For Elphicke this instead becomes a little homily:
“Freedom to manifest one’s religion or beliefs does not entitle a person to cause or incite physical harm or injury to another person and is subject to such limitations as are prescribed by law and are necessary in a democratic society for the protection of public order”.
He does not include protection of health, morals or others’ freedoms. It would seem to allow for orgiastic religious practices as well as inter-religious warfare – short of actual violence.
Article 10 (freedom of expression) in contrast retains the words of the ECHR that freedom of expression may be restricted “for the protection of health or morals” as well as public safety, prevention of crime etc. The new government version is likely to have rather more verbiage added to deal with the current Tory bee in the bonnet of “cancel culture”. It will have to be a delicate balance between suppressing what they don’t like (environmental protests that are noisy for example) and encouraging what they do like.
Under Article 11 (freedom of association) the ECHR offers the “right to form and to join trade unions”. Elphicke adds “(or not to join) trade unions”. This is a strange throwback to the Tory bugbear of the union closed shop – now long gone as a result of legislative changes. Bizarre to dig it up again now.
Article 13 This in Elphicke’s version becomes the right to peaceful enjoyment of possessions (Protocol 1, Article 1 in the ECHR). The ECHR version says no one shall be deprived of his possessions except in the public interest and “subject to the conditions provided for by law and by the general principles of international law”. Elphicke changes this to: “and subject to the conditions provided for by the laws of the United Kingdom”. Again this is a repudiation of any international obligations or any sense that even the right to property might have an agreed international definition or international dimension.
Article 14 is the right to education (ECHR Prot 1 Art 2) which includes from the ECHR version “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”, to which Elphicke adds: “but only so far as this is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure”. So Tory budget constraints become a constitutional principle cutting across human rights. The “efficient instruction and training” bit is presumably based on some feeling that a Muslim education (for example) might not give everything a child needs in a modern capitalist economy. This from a member of the party that extended faith schools to the point of creationists backing new schools.
Article 15 on free elections (Prot 1 Art 3) adds this: “This Article shall not entitle a person to vote in an election if that person is in detention under the sentence of a court handed down for a criminal offence” and “This Article shall not entitle a person to vote in an election if they are not a British citizen.” The former exception is intended to knock the “votes for prisoners” issue on the head once and for all (again turning Tory policy into “constitutional” principle).
The second element is based on the fear that many thousands of people who are not British citizens vote in elections – Irish, EU, people from Britain’s overseas territories and qualifying Commonwealth citizens. It is the last group that is worrying the right wing – a million Commonwealth voters who “could swing the next election” according to a Daily Telegraph headline. The fear, of course, is that “68 per cent of black and Asian people backed Labour in the last general election”. One might think that the widest franchise of people living in a country is the most democratic franchise – but the Elphicke Bill cleaves to a notion of an elite “citizenship” which has to be earned and which then offers privileged access to democratic rights and human rights. (The wording implies they might be allowed a vote but could not claim it as a right.)
Article 16 is that old Tory bee in the bonnet, the right to defend oneself and one’s property in one’s dwelling against trespassers. Again, self-defence is a matter of law – and an otiose law on it has already been passed recently (see After Trayvon Martin, Britain’s ‘stand your ground’ law). There is no logical reason why this should be included as a constitutional principle.
Article 17 is about giving parents rights to challenge their children being taken into care. This speaks to the Tories’ anti-state, anti-social worker concerns – but there is already law on it. The Conservatives’ Children Act sought to address some of the concerns about bureaucratic bodies taking children from their parents – but balanced those concerns against a strong principle that decisions (including court decisions) should be taken in the interests of the child. Elphicke’s Article 17 is unnecessary – but if something “Constitutional” needs saying about the issue of care, it would be that decisions should be in the interests of the children involved. The Bill of Rights should extend rights to children.
The ECHR does mention this principle in Protocol 7 Article 5 on equality of rights between parents with regard to their children. It says: “This Article shall not prevent States from taking such measures as are necessary in the interests of the children.” Protocol 7 is a 1984 amending protocol on various crime and family issues that has never been ratified by Britain.
Article 18 says no British citizen may be compulsorily removed from the UK “except in accordance with a process of extradition prescribed by law” and goes on to say it shouldn’t happen at all “if he was in the United Kingdom at the time the alleged offence in question is said to have been committed”. This is to do with the various cases of extraditions to the US of bankers and hackers that have become causes célèbres in Tory circles. It would also cut across the principle of the European Arrest Warrant, explained here – also a Tory bête noire.
Article 19 is the ECHR’s Article 14: that rights should be enjoyed without discrimination.
Article 20 Says: “Nothing in Articles 8, 10, 11 [privacy/family life, freedom of expression, freedom of association] and 19 of this Schedule shall be regarded as preventing restrictions on the political activity of aliens”. The ECHR says the same about Arts 10 and 11 (at Art 16) but Elphicke adds the family life provision. So the State can override the right to privacy and family life of foreigners involved in political activity – see Trenton Oldfield above, who would certainly lose his right to stay in Britain under this Article.
Article 22 places restrictions on the application of the rights so that foreigners cannot use them to “delay, hinder or avoid” deportation – but there is no right for a deportee to have cases dealt with speedily and fairly.
Article 23 is the section on basic responsibilities. It is unclear how these could be imposed on anyone but theoretically they could be used to deny rights to those people who fail to abide by them as outlined above.
A person’s basic responsibilities include—
(a) obeying the law;
(b) rendering civil or military service when his country requires his support for its defence;
(c) supporting, nurturing and protecting his minor children to the best of his ability;
(d) respecting and upholding basic public order, without placing himself in significant danger;
(e) seeking to support himself without recourse to a public authority to the best of his ability, including but not limited to seeking work or gainful employment where he is able; and
(f) rendering help to other persons who are in need of assistance, where reasonable and to the best of his ability, including but not limited to help for elderly or disabled persons.
The provisions (d) and (f) cut across the long Common Law legal tradition against imposing duties on people. Thus, it is said, no one in English law has a responsibility to save someone from drowning even if he need only stretch out his hand to do so. Macaulay put it thus: the law “must leave to public opinion and to the teachers of morality and religion the office of furnishing men with motives for doing positive good” (Notes on the Indian Penal Code). Glanville Williams sensibly noted:
“If there is an omission, everyone (in a sense) omits. We omit to do everything in the world that is not done. Only those of us omit in law who are under a duty to act”
This is in contrast to some jurisdictions, notably France, under Art 223-6 of the Penal Code, which imposes criminal sanctions on anyone who fails to assist someone in danger. English law is by no means clear regarding when there is a duty to act (basically when the individual is responsible for the danger or has some other duty such as contractual) but a sudden about-turn on a general duty would cause incalculable problems and confusion for the courts and create a law which, from the start, no one would understand and everyone would be likely to fall foul of at some point in their life.
The Criminal Law Revision Committee has suggested a list of “duty situations” to guide judges as to when a duty to act might arise but rejected the idea of a general duty to act and also suggested restricting liability for failures to act to cases of killing or causing serious personal injury.