According to recent reports, Dominic Raab’s Bill of Rights Bill hangs in the balance yet again. But for now, the Bill awaits second reading. If enacted, it will implement the government’s intention to get rid of the Human Rights Act 1998 (HRA) and replace it with a weaker Bill of Rights.
The HRA empowers British judges to protect many rights contained in the European Convention on Human Rights (ECHR). It has proved decisive in defending rights like private property, physical liberty, freedom of expression and the presumption of innocence. Equally, on issues like assisted dying, welfare benefits, and immigration, the HRA leaves determinative scope for political judgement. The HRA establishes a pragmatic balance between legal protection and political flexibility.
Effective human rights protection requires a range of political, judicial, legislative, and international mechanisms so that when one fails, another may succeed. The HRA is an important part of that mix, alongside the common law (judge-made law) and international law like the ECHR. Sometimes common law provides equivalent protection to the HRA, sometimes it does not. Sometimes British judges provide equivalent protection to the European Court of Human Rights, sometimes they do not. It is not enough to have only one or the other. Human rights policy must reflect this complicated reality.
First among the Bill’s problems is that it weakens the protection of human rights by getting rid of section 3 of the HRA. Section 3 requires judges to interpret legislation “so far as it is possible to do so” to be compatible with human rights.
An example is DPP v Connolly, which concerned a law criminalising the distribution of “indecent or grossly offensive” material. The High Court concluded that section 3 could be used to interpret this law in a limited way that was compatible with freedom of speech. Since judges use section 3 only when other options – such as the common law – are insufficient to ensure that legislation respects human rights, the government’s plan represents a major reduction in protection.
Second, the Bill reduces the accountability of public authorities by prohibiting judges from recognising any new positive obligations. A positive obligation is a duty on public authorities to take reasonable steps to secure the protection of a human right. For example, because of the right to life, the courts have recognised a positive obligation on the police to take reasonable steps to prevent victims of domestic abuse from being murdered if the police “know or ought to know of an imminent threat of death or personal injury…which they have the means to prevent”.
This Bill prohibits any new positive obligations, no matter how cheaply, easily, quickly and effectively they could be implemented. At a time when independent inspectors have found that offences which violate the right to private property – like robbery and theft – have effectively been decriminalised due to police failures to investigate, making it even harder to hold the police accountable is indefensible. This legal accountability is critical because, without the HRA, the police cannot be sued for negligence no matter how egregious their failures.
Third, the Bill increases costs and complexity by imposing a new requirement on individuals to prove that they have suffered “significant disadvantage” before pursuing a human rights judicial review. This is designed to deter “bogus” and “trivial” cases. On the government’s own assessment this will raise overall costs for minimal advantage: “There will be additional judicial resources and administrative costs…both to set up and run a permission stage” (para.165), for the volume of cases to be “reduced slightly” (para.169).
All this when there is already a judicial review permission stage where claimants must demonstrate that their case is arguable, and where the government has been unable to identify any bogus, trivial cases which made it through.
This Bill is an overreaction to non-existent problems. It weakens the protection of human rights and reduces the accountability of public authorities, while making the law needlessly more expensive and complicated. There is too much wrong with the Bill to be worth the effort and the government should abandon it (again).