Why the proposed ‘Modern’ Bill of Rights is contradictory constitutionalism

By: Joanna George

On 22 June 2022 Dominic Raab published the Conservative Party’s long discussed Bill of Rights Bill which seeks to appeal and amend the Human Rights Act 1998 (HRA). Such a move goes beyond the 2019 manifesto commitment to ‘update’ the HRA and contains constitutionally significant – and often ambiguous – proposals that will ultimately reduce the level of protection currently conferred by the HRA. For this reason, among others, the Joint Committee on Human Rights declared it to be ‘the most important piece of rights legislation this country has seen for nearly a quarter of a century’.  

The Bill has a number of aims, with the key objective being to ‘reinforce quintessential UK rights’ whilst ‘affirming the supremacy of the Supreme Court’. However, on a closer reading of the Bill and a wider observation of the process surrounding its introduction, it is evident that the Bill is not, in fact, as clear-cut as it makes out to be. Indeed, in the words of Lord Pannick QC:‘If this Bill were being sold in the shops the Lord Chancellor, in my view, would be at risk of prosecution for false or deceptive advertising.’

It is with this sentiment that my forthcoming report with the Constitution Society will interrogate how ‘modern’ (the Government’s chosen word for its consultation on HRA reform) the proposed Bill of Rights actually is through the interconnected constitutional themes of the rule of law, standards in public life and devolution. By examining it through a constitutionally holistic lens, I seek to highlight the unworkability of the Bill in its current form whilst also proposing what a ‘modern’ Bill ought to include to meet the current and uniquely ‘British’ constitutional challenges that are likely to arise in future. This blog briefly discusses some of the issues I will write about. It will also consider the status of the Bill in light of recent political developments.  

Origins of the Bill 

The Conservative Party has aimed to reform UK human rights law for years, with the idea first conceived in 2006. This was in response to concerns that the HRA (via the European Convention on Human Rights (ECHR)) gave rights – such as votes for prisoners – which some people considered undeserved. Such cases were of great interest to the largely politically right-leaning British media which itself had been reined in by the HRA which initiated the evolution of a new tort (misuse of private information). 

Under David Cameron, particular focus was on creating a British Bill of Rights that ‘protects liberties…(is) sensitive to Britain’s legal inheritance…(and) enables people to feel that they have ownership of their rights’. Under Gordon Brown’s Labour Government, a ‘British Bill of Rights and Duties’ was advocated in 2007 which sought to re-invigorate UK democracy by reining in Executive power, building on the basic principles of the HRA and providing ‘explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others’. Such a Bill never came to fruition. Neither did the 2011 Commission on a UK Bill of Rights which failed to reach consensus.  

Despite these limitations, the Conservative Party’s 2015 manifesto committed to repealing the HRA and curtailing the role of the European Court of Human Rights (Strasbourg Court) ‘so that foreign criminals can be more easily deported from Britain’. Impetus for this, however, was interrupted by pressure for Cameron to hold a referendum on the UK’s membership of the EU. Overcoming the obstacles of the Brexit process and finalising its conclusion was also prioritised in the Conservative Party’s 2017 manifesto. But like the longstanding issue of the UK’s membership of the EU, a plan to reform the HRA has endured despite its logistical and political hurdles – and with good reason. The enactment of the HRA proved time consuming and arduous, with campaigners attempting to make the case for it from the 1980s on the basis that the Government misused its power. Unlike the HRA, however, a new Bill of Rights lacks cross-party support.  

The influence of Brexit

Brexit has honed the political conviction (according to hard-line Brexiteers) that the UK ought to detach itself politically and legally from anything that whiffs of European influence or control. This is important to acknowledge when assessing how the tone and language on a new Bill of Rights has shifted over the last two decades. This shift has occurred alongside a decline in the ethical standards of conduct by MPs and Ministers which is especially acute within the governing ranks of the Conservative Party. This can be evidenced by, among other examples, the flouting of the Ministerial Code, holding illegal parties during Covid-19lockdowns and numerous incidents of sexual misconduct, both alleged and proven. 

In an alternative political landscape, it is plausible to conceive that the proposed Bill would have been less divisive and more consensus-orientated across all parts of the UK had it been created along the lines of Brown’s British Bill of Rights and Duties. It would have likely mirrored a similar approach to the creation of the HRA. 

By contrast, the current Bill has been predominantly shaped and influenced by Conservative Party and Brexit-oriented ideologies. Such is the extent of this that the Government ignored the findings of the Independent Human Rights Act Review (IHRAR) and has progressed the Bill contrary to the general consensus that emerged from the Government’s own consultation on a ‘Modern Bill of Rights’. A subtle yet key moment which indicates the influence of Brexit-orientated ideology can be found in Cameron’s 2013 EU referendum speech where he stated that: ‘Some of this antipathy about Europe in general really relates of course to the European Court of Human Rights, rather than the EU’.

It is therefore not surprising that the proposed Bill attempts to curtail the influence of the Strasbourg Court in UK courts. But, as observed by Elliott, the Strasbourg Court is the ultimate judicial authority in international law when interpreting the ECHR. This highlights that not only has the dialogue and the claimed ‘problem’ shifted from the original focus on the EU and Europe, it has transcended to the ‘problem’ of ‘foreign’ judges and international courts at large which provide a crucial legal check on the Government’s conformity with international human rights law standards. The Bill as drafted also seeks to limit the discretion of UK judges – so even domestic courts are now considered a ‘problem’. This means that there may be more cases in the UK where domestic courts cannot protect rights. As a result, more individuals will go to Strasbourg instead. So much for ‘bringing rights home’. 

The seeds of the proposed Bill can be found in old policy documents such as this 2014 paper. But these seeds have flowered into a Bill which many early advocates would not endorse today nor even recognise. The Bill’s introductory debate in the House of Commons last month reveals a marked deterioration in the ethos of political discourse by Conservative MPs. Such standards cannot be diluted when dealing with sensitive human rights law issues. In the past, these were valued by leading Conservative lawyers who played a key role in producing the ECHR on behalf of the UK. This contradictory constitutionalism risks undermining and overlooking the intrinsic ‘human’ element of the proposed Bill – something which ought to be at the core of all legislation that is centred around human rights. Instead, such a response illustrates the growing reality of pragmatic populismwithin the Government and how it operates in practice. 

A ‘British’ Bill of Rights? 

It is interesting to observe that the Bill lacks the word ‘British’ in its title considering that this has been a notable feature of proposed legislation in the past. Whilst it has been confirmed that the Bill will affect the whole of the UK, how any changes will ‘be made on a UK-wide basis’ is unclear, especially as the HRA is entrenched into the devolution settlements of Scotland, Wales and Northern Ireland. England, meanwhile, does not possess the political tools to enable it to voice its own opinion on how the Bill aids – or doesn’t aid – its own individual human rights concerns. 

Despite stating that the UK Government will ‘seek legislative consent motions’ from the devolved administrations, this does notguarantee that their responses will be respected. A previous example of this was the rejection of the European Union (Withdrawal Agreement) Bill in January 2020 by Scotland, Wales, and Northern Ireland. Regardless of this, the UK Parliament passed the legislation. 

It is already well known that the Scottish Government considers the proposed Bill ‘shocking and unnecessary’. The Welsh Government views it as a ‘concerted effort to dilute the rights of the people of Wales’, and has condemned the UK Government for failing to ‘adequately or sufficiently consider’ devolution. This has led to the Welsh Government seriously considering the case for a Welsh Human Rights Bill

The necessity of the HRA and its incorporation of the ECHR into Northern Irish law is integral for the Good Friday Agreement to function. The Government has (on the surface) vocally defended the Good Friday Agreement at all costs, and has even risked breaking international law over it. Yet by introducing a new Northern Ireland Protocol Bill the Government’s actions are constitutionally counterintuitive. With more than half of the members of the Northern Ireland Legislative Assembly condemning the UK Government’s actions as ‘utterly reckless’, it shows that the UK Government is actually willing to undermine the Good Friday Agreement. In this respect, the proposed Bill of Rights is another example of how the UK Government fails to understand and have genuine interest in the workability of devolution in Northern Ireland which requires political sensitivity and legal compromise at all times. 

Further, how the proposed Bill of Rights constitutionally chimes with calls for ‘the creation of a revitalised, better-functioning and less rancorous Union’ is clear – it doesn’t. Why risk adding more tension to intergovernmental relations – especially when Scotland is actively seeking to hold another independence referendum in 2023? 

Current and future status

The proposed Bill of Rights, however, has been put into doubt by the resignation of Boris Johnson as Conservative Party leader after the dramatic (and, at one point, relentless) resignation of more than 50 government ministers. With the tenure of one of the most politically controversial British Prime Ministers in recent times drawing to a close, the current Conservative Party leadership contest will not only decide whether Liz Truss or Rishi Sunak will become Conservative Party leader and Prime Minister. It will influence the fate of the proposed Bill. 

This means that there is a chance that the Bill may not progress as scheduled to a Second Reading in the House of Commons on 12 September 2022 – a week (5 September) after the selected candidate is chosen. There is also potential for the Bill to be altered or even dropped should the chosen candidate select a different Secretary of State for Justice. This could explain why Dominic Raab recently cancelled his evidence session with the Joint Committee on Human Rights at short notice and without explanation. Whilst it may be too soon to call if the Bill is ‘slowly fading away’ (as suggested by legal commentator Joshua Rozenburg), the issue of human rights and whose human rights the Government intends to focus on (or ignore) will continue to be of concern.

In particular, both Truss and Sunak have expressed frustration with the UK’s immigration system in relation to the contentious Rwanda scheme and the intervention of the Strasbourg Court. Despite stating in the Bill’s introduction that the UK is ‘committed to remaining party to the European Convention on Human Rights’ the political dynamics of the leadership contest suggest that this commitment is a weak one. Former candidate and the current Attorney General, Suella Braverman, explicitly advocated withdrawal. Both Truss and Sunak have not ruled out leaving the ECHR. But to do so would likely require an electoral mandate to progress it in Parliament. 

As discussed, such an idea also fails to grasp UK political reality, where the ECHR is required for the compatibility of the Good Friday agreement in Northern Ireland. As for Scotland and Wales, the ECHR was entrenched in each nation’s constitutional settlement via the Scotland Act 1998 and the Government of Wales Act 2006 respectively. How the Government could propose the UK leaving the ECHR whilst simultaneously remaining committed to strengthening the Union is a prime example of its contradictory constitutionalism.  

Within Europe it would also situate the UK with the likes of Russia as one of three countries not committed to the ECHR. For a historically progressive country such as the UK to turn its back on a convention that has embedded cultural and ‘modern’ legal rights that the population at large value, such as stronger protections for victims of domestic abuse and equal rights for individuals who identify as LGBT, such a decision might be considered highly ‘un-modern’ and legally unwise, both within the UK and internationally. 

If the Government is serious about human rights reform – and wishes for others to treat the proposed Bill as a serious and workable piece of constitutional legislation – it is necessary for it to get intentional about why the proposed Bill is necessary for this moment in time, who will truly benefit from it in the long-haul, when could it prove to be an obstacle to democracy at large and whether it truly compliments the UK’s wider constitutional picture. Absent of this, it speaks of an Executive uninterested and unwilling to properly fulfil its democratic function and raises serious questions about what kind of political and constitutional legacy it wishes to bestow on the people – actual and perceived – it governs. 

Joanna George.

I would like to thank Professor Alison Young, Professor Mark Elliott, and Dr Dexter Govan for their comments on an earlier draft of this post. 

Joanna George is a Research Fellow at the Constitution Society.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.