The Bill of Rights Bill is framed by the Government as necessary to ensure ‘meaningful democratic oversight’ of human rights protection in the UK, with Conservative MPs keen to present the Bill as a means to restore sovereignty in the face of interfering judges – both at the level of the European Court of Human Rights (ECtHR) and UK courts.
However, as this post will argue, the Bill undermines sovereignty and meaningful democratic oversight of rights protection in at least three ways not acknowledged by the Government and the Bill’s supporters. These are in the Bill’s process, presentation and procedures. That is, sovereignty is undermined by, first, the Bill’s process through Parliament, second, its presentation to Parliament by the Government, and third, via the procedures contained in the Bill that facilitate executive interference with judicial scrutiny of human rights protection. As we will see, while the Government purports to be placing parliamentary authority at the centre of UK human rights protection, in reality the executive is seeking more power to manipulate human rights law to its own advantage.
Before moving onto the main analysis, overviews and assessment of the Bill can be found here, here, and here. Moreover, it is helpful to clarify first what is meant by sovereignty. This is particularly important as some may question how a piece of legislation presented by an elected government to be passed by an elected parliament could constitute an attack on sovereignty.
Sovereignty refers to the authority of a state to govern itself. While scholars continue to debate its nature and form and it is far from a precise legal concept, it is widely accepted that in basic terms sovereignty requires that states are autonomous and maintain the power to determine their own laws and policies. In the UK, sovereignty – both internal and external forms of sovereignty – is reflected in the principle of parliamentary sovereignty which exists at the heart of the UK constitution. As articulated on the Parliament website, the principle is widely considered to be the ‘most important constitutional principle’ and states that Parliament is the supreme law-maker, must be free to legislate as it wishes and that no person or body is recognised by law as having a right to override or set aside its legislation.
Parliamentary supremacy means that the legislature cannot be treated as a mere rubber-stamp for the Government’s legislative programme. This imposes practical constraints on processes around law-making in the UK. For example, to the extent that the Government controls law-making processes, it must treat Parliament with respect and support scrutiny processes. This includes through not deliberately misleading parliamentarians (para 1.3, Ministerial Code) and ensuring that Parliament is the first to be told of important Government announcements (para 9.1, Ministerial Code).
1. Process: Sidelining Parliament
Merris Amos has set out a number of means by which the Government is sidelining Parliament in attempting to pass this legislation. This includes by depriving Parliament of enhanced scrutiny procedures that would be available in many other democracies in the case of analogous constitutional reform – such as constitutional assemblies or conventions. As Amos and others have already emphasised, the Bill of Rights Bill goes beyond the Government’s manifesto commitment, which stated it would ‘update’ the Human Rights Act 1998 (HRA). Instead, the Government is repealing the HRA, thereby conducting far-reaching reform of human rights protections.
The Government has also refused to allow Parliament to carry out pre-legislative scrutiny of the Bill. Such scrutiny occurs where a parliamentary select committee gives a detailed examination of an early draft of a Bill before the final version is drawn up by the Government. The fact that the Government has chosen not to enable any pre-legislative scrutiny of the Bill of Rights Bill is undermining of Parliament for two key reasons. First, it is a scrutiny procedure often afforded to much less radical legislation. For example, it was recently afforded to the Downstream Oil Resilience Draft Bill. It is hard to decipher on what grounds the Government considers it appropriate to enable pre-legislative scrutiny of legislation setting out powers to maintain the supply of oil but not to legislation repealing a constitutional statute.
Second, pre-legislative scrutiny of the Bill had been explicitly requested by a number of Parliamentary committees. Indeed, the cross-party, cross-House parliamentary committees – the Joint Committee on Human Rights (JCHR), the Justice Committee, the Lords Constitution Committee and the Public Administration and Constitutional Affairs Committee – sent a joint letter to the Government urging it to allow the Bill to be subject to pre-legislative scrutiny. It described the Bill as being of ‘supreme constitutional significance’ and stated it was ‘vital’ that the Bill was subject to the ‘fullest amount of public and parliamentary scrutiny to ensure their appropriateness, practicality, and longevity’. Notably, the Government was also sent a letter by 150 organisations calling for the request of the parliamentary committees to be granted.
Finally, Parliament’s supremacy has been further undermined by the Government’s announcement of the Bill, given to the press in the evening before Parliament was informed. Not only is this presumably a breach of the para 9.1. of the Ministerial Code, referred to above, it had practical consequences for parliamentary scrutiny. Namely, the Government was able to shut parliamentarians out of responding to the Bill as it was communicated to the public.
2. Presentation: Taking Parliament for a Fool
The Government’s presentation of the Bill to Parliament further undermines sovereignty to the extent that there is a significant discordance between the Government’s narrative surrounding the aims and necessity of the Bill, evidence collected in the lead up to the Bill and the changes actually contained in the Bill. This discordance interferes with Parliament’s ability to scrutinise the Bill by creating the potential for significant numbers of MPs to be misled into thinking they are voting for a set of changes which empower Parliament, which will, in fact, have the opposite effect in a number of key ways. The effect of the Bill’s presentation in this way runs along three strands.
First, in introducing the Bill, the Government stated to Parliament that the Human Rights Act should be repealed, despite this contradicting the key evidence produced in the run-up to the Bill, both at the Government’s request and by Parliament. This evidence takes the form of the Independent Human Rights Act Review (IHRAR), the Government’s own consultation paper, and a review of the IHRAR and its findings carried out by the JCHR. The IHRAR was carried out at the request of the Government in 2020. In conducting its review, the Independent Human Rights Act Review Panel (IHRARP) issued a widely publicised call for evidence based on terms of reference set by the Government. The call resulted in over 150 responses and the IHRARP engaged in a series of ‘roadshow events’ consulting further people on the issues raised in the call. The Government has chosen to ignore the findings of the IHRAR, which stated the HRA should not be repealed but amended in a number of discrete ways.
The Government’s own consultation paper, published earlier this year, received over 12,000 responses. The consultation response was published on the same day as the Bill of Rights Bill. As others have emphasised, it is clear from the report that the tide of the responses runs starkly in the opposite direction to the changes in the Bill. For example, in response to the question as to whether the Government should repeal or replace section 3 of the HRA, 79% of the over 2000 responses to this question responded the section should be left alone and only 4% stated it should be repealed (para 69).
The Bill also contradicts the recent cross-party findings of the JCHR in its review of the HRA. The review found that the HRA ‘does not unduly constrain the domestic courts’. It further found that removal of section 2 of the HRA, as the Bill of Rights Bill does, ‘would risk more successful appeals to Strasbourg’, ‘could only serve to damage the rights of UK citizens – with the associated increases in time and cost of cases going to Strasbourg’ (page 5). It also emphasised that the HRA itself was designed to maintain parliamentary sovereignty (as a wide range of scholars have emphasised on this very blog), and that ‘[t]here is no case for changing the HRA on the basis of the impact on the separation of powers in the UK’ (ibid).
Second, as well as being inconsistent with ignoring the JCHR findings, the Government’s narrative that the Bill is about placing Parliament back in the driving seat with respect to rights sits uncomfortably with the Government’s past actions. As Mark Elliott has put it, this Government has shown itself to be ‘allergic’ to accountability. In particular, it has continuously put obstacles in the way of Parliament doing the work of scrutiny in ways which show a distinct lack of respect for the separation of powers in the UK. This is even putting to one side significant events such as Parliament’s prorogation, and the treatment of Parliament with respect to ‘Partygate’. In the day-to-day of law-making, the current Government has continuously stood in the way of democratic oversight. This includes its evasive timetabling of parliamentary debates on controversial legislation, its continuously opting to use delegated legislation to enact significant policy change, and its refusal to publish basic information such as impact assessments of its regulations during the pandemic, despite repeated requests from parliamentarians.
There is also something inconsistent with the Government’s current narrative around judges and human rights, and successive Conservative Governments’ presentation of judges in instances they have sought invasive powers from Parliament. While the Government has of course been critical of judges in public over the years, it is noticeable that it has been supportive of rigorous judicial scrutiny of human rights when seeking certain controversial powers. A good example is when it sought powers of bulk surveillance via the Investigatory Powers Act 2016. When the Investigatory Powers Bill was introduced to Parliament, then Home Secretary, Theresa May, stated the Bill would provide Parliament with ‘greater confidence’ that ‘robust measures’ were in place to ensure that the surveillance powers would be subject to ‘world-leading safeguards’ (HC Deb 15 March 2016, vol 607, cols 815 – 818). This took the form of a ‘powerful’ new judicial body to test the necessity and proportionality of surveillance warrants. In this way, Government assured Parliament it ought not be concerned about the introduction of such broad powers into statute, as judges would ensure that the powers would be used only when meeting ECHR requirements.
There are a number of other examples of these kinds of dynamics, such as the Terrorism Prevention and Investigation Measures Act 2011 (where the Government promised ‘rigorous consideration’ by the courts (HC Deb 7 Jun 2011, vol 529, col 73)) and the Justice and Security Act 2013. In these contexts, the Government has tended to discourage Parliament from examining the human rights implications of legislation with the promise that judges would examine them. Such dynamics raise questions about the Government’s purported concern about the democratic impact of judges applying human rights law, and desire to facilitate Parliament having a greater role in developing rights protections.
Third, and finally, the discordance in the Government’s plans is visible, even when viewing the stated aims and Bill’s provisions in isolation. In the first instance, the Government claims it is committed to the UK staying in the ECHR. This is inconsistent with it drafting a Bill designed to empower judges to make rulings which may significantly diverge from requirements set by the ECtHR, and therefore most likely to put the UK in breach of its treaty obligations (as argued, for example, by Mark Elliott). If the UK is persistently in breach of its treaty obligations, the Council of Europe would presumably have no choice but to exclude the UK as it did Russia, or risk undermining the integrity of human rights protections across Europe.
A further contradiction is that, in presenting the Bill, the Government claims to be restoring a ‘healthy dose of common sense in the justice system’. However, as is already now being widely highlighted, the Bill introduces a range of complex tests for judges to apply, couched in vague language, which complicates human rights law rather than adding ‘common sense’. For example, this is clear from the distinction the Bill introduces between ‘pre-commencement’ and ‘post-commencement’ interpretation of Convention rights and the application of this distinction to ‘positive’ and ‘negative’ obligations set out in Clause 5 of the Bill.
Many will know that the distinction between positive and negative obligations is in practice far from clear in many situations. In fact, in the Council of Europe’s own guidance states ‘there are situations in which this difference is not self-evident, where the boundary between the two kinds of obligation is blurred’ (page 12). While some might see the subsections of Clause 5 (2) (a) – (e), Clause (7) to provide some direction for judges on managing positive obligations, the definition of such obligations provided in Clause 5 (7) is broad and states that this is an ‘obligation to do any act’. It is also not clear how it would apply, for example, to ECHR requirements that involve actions but are associated with ‘negative rights’ – such as the article 5 ECHR right to liberty requirement that public authorities ensure an arrested individual is brought promptly before a judge.
Most importantly, the Government claims the Bill will enhance democratic oversight of rights protection. Notably, Clause 25 of the Bill does enhance Parliament’s powers insofar as a Minister has to tell Parliament when the ECtHR decides against the UK. This will ensure that Parliament is involved in responding to instances in which the ECtHR finds the UK to be in violation of its ECHR obligations.
The majority of other provisions undermine any benefit posed by Clause 25. For a start, this is through the introduction of broad tests, and additional dimensions for courts to consider which risk handing UK judges more discretion in practice. Judges will most likely respond to these complicated requirements by erecting labyrinthine interpretations which in practice will only undermine Parliament’s participation in steering the direction of human rights law. Crucially, the Bill will also damage democratic oversight of rights protections by enabling executive interference with human rights law, as set out in the next section.
3. Procedures: Facilitating Executive Interference in Human Rights
The Bill contains a number of provisions which enable unprecedented executive interference in human rights law. This is due to a key mechanism used across the Bill, which requires judges to take into account factors which ultimately are under the control of the executive, and which the executive can use in litigation to pressure judges into finding against a violation of human rights.
A good example of this is contained in Clause 7, which applies when judges are determining an incompatibility question in relation to a provision of an Act of Parliament. In determining this question, judges have to take into account factors including whether the Convention rights secured strike an appropriate balance ‘as between different policy aims’ (Clause 7 (1) (a)). Given that the Government is the instigator of policy, it is the Government that will be responsible for advising judges what the relevant policy aims are. In this way it will be in a position to steer judicial decisions on rights protection.
Another example is Clause 5 (2), referred to above, which applies to judges in ‘deciding whether to apply a pre-commencement interpretation of a Convention right that would require a public authority to comply with a positive obligation’. The Clause requires that judges give ‘great weight’ to the ‘need to avoid applying an interpretation’ that would give rise to a number of conditions. These include whether the interpretation would ‘have an impact on the ability of the public authority or of any other public authority to perform its functions’. Again, it is the Government who will claim to have the authoritative perspective on this and will inevitably call for deference from judges while pressuring them to avoid making a finding of a rights violation.
The Bill also requires judges to defer to the executive on matters in which it has a questionable record. For example, this is true with respect to changes introduced by Clause 20. This requires that judges defer to the Government’s deportation decisions where informed by deportation assurances in all but the most extreme circumstances, such as where the right to a fair trial would be so violated this would amount to a ‘nullification’ of the right.
The Government has shown itself to be willing to rely on demonstrably unreliable deportation assurances, as highlighted in litigation surrounding the W and others case which concerned diplomatic assurances from Algeria. Through repeated litigation, evidence surfaced that despite the Government’s claims, the assurances had never been reliable, and this had been known by British diplomats in Algeria at the time they were sought (W and others, ). Notably, by the time this came to light, the Government had already deported nine men on the basis of the assurances, whom the British embassy has since been unable to trace.
W and others not only demonstrates the fallibility of Government assessments with respect to diplomatic assurances. It also demonstrates the need to keep rigorous checks on Government decision-making with respect to human rights in order to avoid life-threatening consequences.
Calling the Government’s Bluff: Three Ways to Ensure Democratic Oversight of Human Rights Protection
The sidelining of Parliament in the way described above sets a precedent for the Government to take major constitutional reform into its own hands, which is far from consistent with respecting Parliament as the supreme law-maker. For all the Government’s framing, the Bill of Rights Bill represents a significant threat to sovereignty. This post finishes by suggesting that if the Government is serious about protecting sovereignty, it should do the following as a start:
1. Withdraw the Bill of Rights Bill and allow for pre-legislative scrutiny of a Draft Bill.
2. Redraft the Bill in a manner which takes up rather than ignores the evidence it sought in the lead up to the Bill, and sticks to its manifesto commitment.
3. Parliament should determine the timetable for its scrutiny, so it can ensure it has the time it requires to examine the Bill’s changes.
The author would like to offer warms thanks to Professor Mike Gordon and Professor Alison Young for their hugely helpful feedback on the piece. Any remaining errors are of course the author’s own.
Daniella Lock is a Postdoctoral Fellow at the Bonavero Institute of Human Rights in the Faculty of Law, University of Oxford
(Suggested citation: D. Lock, ‘Three Ways the Bill of Rights Bill Undermines UK Sovereignty’, U.K. Const. L. Blog (27th June 2022) (available at https://ukconstitutionallaw.org/))