The government has published its proposed Bill of Rights Act, which is supposed to repeal and replace the existing human rights act, in response to several successful legal challenges to government policies (Most recently their plan to deport asylum seekers to Rwanda) under the existing framework. The proposed new bill severely curtails the ability of courts to take a maximalist view of our rights, and contains so many exceptions to the right of free expression as to render it an empty promise under the proposed new framework. The bill also absolves public authorities, including the police, from any positive obligation to protect our rights if doing so would be inconvenient.
Much political hay has been made by justice secretary Dominic Raab about the bill’s supposed liberation of UK jurisprudence from that of the European Court of Human Rights, and consequently one would expect the bill to make little reference to the ECHR, and allow UK courts a wide latitude to make their own judgement in matters of law. Reading the bill, however, one discovers something quite different: Not only does it repeatedly reference the ECHR, but it explicitly ties UK courts to ECHR jurisprudence. From Article 3 of the bill:
[A UK court] may not adopt an interpretation of [a] 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.
It goes on to say that, subject to the above restriction, the court:
May adopt an interpretation of the right that diverges from Strasbourg jurisprudence.
“Strasbourg jurisprudence” meaning the jurisprudence of the ECHR. In other words: This act would allow UK courts to adopt a more restrictive view of our rights than the ECHR, but never a more expansive one. If that sounds like a recipe for curtailing hard-won rights and liberties, that’s because it is.
Speaking to the Sun, Mr. Raab said that the new bill of rights would “Strengthen traditional UK rights such as freedom of speech”. The bill does not, in fact, strengthen our right to free expression, it weakens it, as has been pointed out by the Index of Censorship, and various other free speech advocacy organisations. Under Article 4 of the bill, free speech protections do not apply in such circumstances as:
In criminal proceedings or to the determination (in other proceedings) of any question whether a provision of primary or subordinate legislation that creates a criminal offence is incompatible with a Convention right.
In other words: Your freedom of expression will offer no protection if you stand accused of breaking any law through your speech or expression. All the government would have to do to criminalise any form of expression would be to pass a law against it which, as we saw with the Police, Crime, Sentencing and Courts Act earlier this year, they are more than willing to do. The bill also nullifies free speech protections in any situation “which affects or may affect national security”, a provision which hard experience has shown us to be highly open to abuse.
Finally, the bill greatly limits the circumstances under which positive obligations may be placed on public authorities on human rights grounds (Positive obligation meaning “an obligation to do any act”). Article 5 of the act says the court may not impose positive obligations on any public authority if doing so would:
Have an impact on the ability of the public authority or of any other public authority to perform its functions…or undermine the police’s ability to determine their operational priorities
In other words: The police don’t have to take active steps to protect our rights if doing so would inconvenience them.
It’s easy to see why this provision is in the bill. To quote Amnesty International:
[Positive obligations] are integral to the ability of families to secure effective inquiries into deaths where the state may be responsible, such as the Covid inquiry. They are also vital to the ability of victims to hold the police accountable for serious failures in conducting effective investigations in rape cases, such as the John Worboys offences.Rights Removal Bill is ‘giant leap backwards’ for ordinary people | Amnesty International UK
This government wishes to remove positive obligations from the UKs human rights framework, because they don’t want us to have recourse in such cases.
In summary, the so called British Bill of Rights is a thoroughly illiberal document which seeks to roll back the hard won human rights protections we enjoy in this country, and expand the government’s power to trample our liberties. Rights Liberties Justice emphatically opposes it. We call upon our membership and supporters to oppose the bill, and to make your opposition known to your MPs.