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Annual Human Rights Lecture 2022: Lady Hale's Keynote Address in Full

25 Jul 2022

On 4 July 2022, the Northern Ireland Human Rights Commission held its 2022 Annual Human Rights Lecture at The Royal Courts of Justice in Belfast. This is the full text from the keynote speech by Lady Brenda Hale.

To watch the event back see here.

DO WE NEED A BRITISH BILL OF RIGHTS? - Lady Brenda Hale

I suggested this title after the Government had published its Consultation Paper on a British Bill of Rights but before the Bill was introduced to Parliament on 22 June. This has not left me with much time to get to grips with the Bill itself, let alone with the Government’s Report on the Response to its Consultation Paper or the Explanatory Notes to the Bill. So please forgive me if my comments are not as polished as they should be.

Of course, when I suggested this title, the answer was easy – like many other well-informed commentators, including Sir Peter Gross, who chaired the Independent Human Rights Act Review, it was resounding ‘no’. As that Review found, there is very little wrong with the Human Rights Act, and what little there is wrong could easily be put right by amendment. Wholesale repeal and replacement with an Act which does much the same thing in much the same way but with some important qualifications and restrictions is full of dangers. Quite apart from reducing the protection currently available to the victims of human rights violations, and thus risking the breach of our international obligations, it will lead to doubts and uncertainties and a greatly increased risk of time-consuming and costly litigation both here and in Strasbourg for years to come. And the case for taking that risk has simply not been made out.

It was, of course, reassuring that the Government Consultation Paper announced that the UK would remain a party to the European Convention on Human Rights. This means, of course, that it has to provide an effective remedy before a national authority for everyone whose rights and freedoms, as set forth in the Convention, are violated (article 13). It also has to accept the right of ‘any person, non-governmental organisation or group of individuals claiming to be the victim of a violation’ of the Convention rights to petition the European Court of Human Rights (article 34). And it must ‘abide by the final judgment of the Court’ in any case to which it is party (article 46). One of the many concerns voiced by commentators is that de-coupling decision-making within the UK from the decision-making in Strasbourg will result in fewer victims gaining redress in the UK courts; more having to go to Strasbourg; and more adverse decisions against the UK in Strasbourg; and so the reverse of the Human Rights Act’s declared object of ‘bringing rights home’. There is also a concern that the Bill, combined with other proposed legislation, may put the UK in breach of its international obligations under the Convention. But the Government does not think so. Secretary Raab has stated that in his view the provisions of the Bill are compatible with the Convention rights. I wonder?

The first thing to notice about the Bill is that, rather than begin by mapping out the basic scheme for converting the Convention rights into rights in UK law, as the Human Rights Act does, it begins by sloganising and putting up-front all its most eye-catching proposals, designed to appeal to those, including the media, who have long been opposed to the Human Rights Act.

So, for example, clause 1(2)(a) provides that ‘it is the Supreme Court (and not the European Court of Human Rights) that determines the meaning and effect of Convention rights for the purpose of domestic law’ (see also s 3(1)). But this has always been the case. The Supreme Court, and indeed any court which finally decides a case concerning the Convention rights, including the Northern Ireland Court of Appeal, already determines their meaning and effect in domestic law. If the case goes to Strasbourg, it is not an appeal from the decision of the domestic court. That decision still stands. The applicant brings a complaint that the UK, as a State, has violated the Convention rights. Any adverse judgment is against the UK as a State, which must then abide by the Strasbourg Court’s judgment. But the interpretation arrived at by the UK court is still binding on the lower courts unless and until the higher court decides to change it in response to what Strasbourg has said. There is absolutely no need for this grand-standing provision or for the equally obvious statement in clause 1(3) that judgments, decisions and interim measures of the European Court of Human Rights are not part of domestic law, neither of course do they affect the right of Parliament to legislate.

So far, so unnecessary but probably harmless. Perhaps also comparatively harmless is the repeal of section 2 of the Human Rights Act, which requires the UK courts to ‘take into account’ the jurisprudence of the European Court of Human Rights, the Commission, and the Council of Ministers, when determining questions about the Convention rights. We were never required slavishly to follow it. But we mostly took the view that, coupled with the Act’s purpose of ‘bringing rights home’, it meant that if it was clear that the claimant would win in Strasbourg, then the claimant should win here. But even then, we could decline to adopt the Strasbourg line if it was contrary to some fundamental principle of UK law or ignored some important point of UK law or practice. In such cases we would enter into a constructive dialogue with Strasbourg. The Bill does not repeat or modify section 2, but neither does it expressly forbid the UK courts to take the Strasbourg jurisprudence into account. So they are left without guidance as to the weight to be given to it. But they are told that they can adopt an interpretation which is different from Strasbourg’s – as long as they don’t take it further than Strasbourg would do – thus decoupling the two.

More sinister is the repeal of section 3 of the Human Rights Act. There will no longer be an obligation to read and give effect to legislation in a way which is compatible with the Convention rights. It seems to have been forgotten that section 3 applies to everyone – not just to courts. Everyone has to read and – just as importantly – to give effect to legislation in a way which is compatible with the Convention rights, if it is possible to do so. Both the Joint Committee on Human Rights and the Independent Human Rights Act Review noted that the Act had had a beneficial effect which went way beyond what the courts do, in expecting everyone to respect the Convention rights – an example was the impact upon practices in care homes which had previously violated residents’ rights to privacy or subjected them to inhuman or degrading treatment.

The Consultation Paper complained that section 3 allowed the courts to ‘amend’ legislation, but the principal example given was Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557. The House of Lords interpreted living with a deceased tenant ‘as his or her wife or husband’ to include same sex couples. Yet I would be very surprised if most people would now read it in any other way. And the Consultation Paper failed to point out that the Government itself argued strongly for this interpretation – indeed, it has been common for the Government to argue, first, that a provision is compatible, but second that if it is incompatible then section 3 could cure the problem – in other words for the courts to let them off the hook of having to decide whether and how to cure it. That tendency was noticeable whatever the political stamp of the Government in power.

With section 3 gone, the courts will be told to have particular regard to the text of the Convention right and that they may have regard to the preparatory work of the Convention in interpreting it (clause 3(2)(a)). This looks like a strong nudge towards to what in the United States would be termed originalism – what the original drafters meant or what its original readers thought that they meant – and away from the ‘living instrument’ doctrine which has led to Strasbourg developing the Convention to meet new problems and changing social conditions. There are, of course, those who think that the living instrument doctrine has been taken too far – but we should not forget its beneficial effects, for example, in securing equal rights for children born to unmarried parents (Marckx v Belgium (1979) 2 EHRR 330), the right of access to a court to determine civil rights and obligations (Golder v United Kingdom (1975) 1 EHRR 524), or the right to an effective inquiry into deaths for which the State may bear responsibility (McCann v United Kingdom (1995) 21 EHRR 97).

More significantly, courts will also be told that they may not adopt an interpretation of a right which expands the protection given 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’ (clause 3(3)). So what would happen in a case like Rabone [2012] UKSC 2, [2012] 2 AC 72, where the UK Supreme Court decided that an institution’s duty to protect an individual life which was known to be at risk extended not only to prisoners and detained psychiatric patients but also to an informal psychiatric patient? As it happens, the Strasbourg court reached the same conclusion only a few weeks later. But could we have had ’no reasonable doubt’ that it would?

But it goes further than that. What about cases where we can be pretty confident of the direction of travel in Strasbourg court but it has not got there yet and is content to allow Member States to decide matters for themselves – affording them what is known as a margin of appreciation? We had understood from ministerial statements in both Houses of Parliament before the Human Rights Act that they expected the court to develop the Convention rights in a distinctively British way, bearing in mind the long tradition of protecting individual liberty in UK law. Many commentators were critical of the ‘no more’ part of Lord Bingham’s famous dictum in Ullah – that we should keep pace with the Strasbourg jurisprudence as it develops over time, ‘no more but certainly no less’ [2004] UKHL 26, [2012] 2 AC 323. So in Re G [2008] UKHL 38, [2009] 1 AC 173, the House of Lords decided that the Northern Ireland Order preventing unmarried couples from adopting jointly was unjustifiable discrimination in the enjoyment of their right to respect for their private and family lives. Strasbourg did get there in the end, but at the time it would still have been within the margin of appreciation. The same can be said of the majority decision of the Supreme Court in the Northern Ireland abortion case.

Mind you, in the Elan-Cane case [2021] UKSC 56, [2022] 2 WLR 133, the Supreme Court has recently done the Government’s job for them, holding that if a case is clearly within the margin of appreciation, so that Strasbourg would not find a violation, the courts cannot do so. Parliament is to be the sole judge of what to do about matters which fall within the UK’s margin of appreciation – I confess that I did say something to that effect in an early Human Rights Act case but was convinced otherwise by no less than Lord Hoffmann and Lord Hope in Re G. Of course, there are areas where the courts should respect the greater institutional competence of the Government and Parliament. But the courts have traditionally regarded themselves as competent to rule on matters concerning the liberty of the subject and indeed discrimination, at least in certain areas. There is a particular need for the courts to protect minorities against discrimination by the majority.

The Bill puzzlingly tells the courts that they may have regard to the development under the common law of any right which is similar to the Convention right – but what is the point of that if the common law has developed the right further than Strasbourg has done but the UK court is not allowed to do so?

Tellingly, there is one exception to the prohibition on expanding the Convention Rights – and that is freedom of speech. Clause 4(1) tells the courts to give great weight to the importance of protecting the right to freedom of speech. And they are allowed to expand that right further than Strasbourg has so far done. It is not clear to me whether and to what extent this is meant to mean that freedom of expression trumps the right to respect for private and family life – we can expect some lively arguments about that. But any attempt to argue that clause 4(1) is itself incompatible with the Convention rights would come up against clause 7. This says that when deciding incompatibility questions where it is necessary to decide whether a provision in an Act of Parliament strikes an appropriate balance between, among other things, different Convention rights, the court must regard Parliament as having decided that it did strike an appropriate balance and give the greatest weight possible to the principle that such decisions should be made by Parliament. I haven’t yet worked out whether this is meant to apply to Acts of Parliament whenever passed – even if passed long before Parliament would have addressed its mind to the appropriate balancing act.

This is only one troubling aspect of singling out only one of the Convention rights for specially advantageous treatment over all the others. There are problems about reconciling this expansive view of freedom of expression with other things that the Government is trying to do. The On-Line Harms Bill is also currently going through Parliament. This imposes duties upon user-to-user and search services having links with the UK in relation to three types of content: illegal content, content that is harmful to children and content that is legal but harmful to adults. All service providers will have to undertake risk assessments in relation to illegal content and content harmful to children and take steps to mitigate and manage the risks of harm to individuals and children. The largest online platforms will also have to conduct an assessment of the risks to adults from content which is legal but harmful and set out in their terms of service what they intend to do about it. It is this which seems to have provoked the most alarm from free speech campaigners. The Government has tried to meet this by requiring these platforms to protect content of democratic importance and journalistic content. And all service providers, when devising safety measures, must have regard to the importance of protecting freedom of expression within the law.

Some of us think that it is no bad thing if internet platforms have to take steps to protect people against content which may do them physical or psychiatric harm (which is how harmful content is defined in the Bill). But how is this going to sit with a Bill of Rights which makes no attempt to restrict the freedom to express views which may do actual harm? The permitted restrictions on freedom on expression in article 10 of the Convention will now have to be interpreted giving great weight to the importance of protecting the right to freedom of speech.

Others have wondered how a more expansive view of freedom of expression can be reconciled with provisions in the Police, Crime, Sentencing and Courts Act 2022 which aim, among other things, to curb noisy protests. While freedom of speech in the Bill is defined as the right to impart ideas, opinions or information by means of speech, writing or images, and so does not include the right of assembly, how does it work if you assemble in order to impart opinions by means of noisy speech?

The Bill contains another provision which is aimed at pleasing the media in all kinds of litigation, not only human rights claims (clause 21). No court can require the disclosure of a journalistic source unless it is necessary in the interests of justice, national security or the prevention of crime or disorder and there are ‘exceptional and compelling reasons’ why disclosure is in the public interest. The Contempt of Court Act is amended in line. This may or may not be a good thing – I have no particular view either way – and it may enhance the protection given by article 10 to freedom of expression, but it applies in all legal proceedings irrespective of whether they have anything to do with human rights. But someone must have thought that it falls within the scope of a Bill whose long title is ‘to reform the law relating to human rights’.

The Bill does contain one brand new right – the right to trial by jury. But it is an empty right. Clause 9 declares that the way in which a fair trial is secured in the United Kingdom includes trial by jury. This might have been necessary in the days before Strasbourg accepted that a jury trial did comply with article 6 – this had been in some doubt because juries do not give reasoned verdicts. But Strasbourg accepted this long ago, so there is no need for the UK to say so. What clause 9 does not do is set out that there is a right to jury trial in any particular circumstances – it expressly allows the law to prescribe that a person should be tried without a jury or that an offence is not serious enough to require it. There is nothing in the Bill which would restrict the scope of judge alone trials, whether in Northern Ireland or Great Britain. This has all the appearance of a crowd-pleasing measure which changes nothing.

With those two exceptions, therefore, the initial emphasis has been on not expanding the Convention rights. But there is also much in the Bill which would contract those rights. Most troubling of all is clause 5, which deals with positive obligations, because it applies generally, rather than in the more specific contexts of deportation and the like. Strasbourg has often said that the dividing line between positive and negative obligations is not clear-cut and one can well understand why: the right to a fair trial in article 6, for example, involves both the positive obligation to provide a justice system which affords that right and the negative obligation not to deny it to anyone. The three most fundamental rights, in articles 2, 3, and 4, have all been interpreted to cover a mixture of negative and positive obligations: so, for example, the right to life in article 2 means that the State must not take life; it must also investigate deaths for which the State may be responsible; and it must have in place a system of laws and regulation which protect the right to life. More controversially, there is the specific Osman (2000) 29 EHRR 245 duty to take reasonable steps to protect the life of a particular individual which is or ought to be known to be at immediate risk. There is an equivalent set of positive and negative obligations under article 3, which protects against torture and other inhuman or degrading treatment or punishment, and under article 4, which protects against slavery or servitude and forced labour. The Bill is quite clear. A positive obligation is an obligation to do any act.

Clause 5 distinguishes between ‘pre-commencement’ and ‘post-commencement’ interpretations. A pre-commencement interpretation is one which has been authoritatively adopted either by a UK court or by the Strasbourg Court before the coming into force of the British Bill of Rights. This would include all of the above. A post-commencement interpretation is everything else. The Bill is adamant that a court may not adopt a post-commencement interpretation of a Convention right which would require a public authority to do any act. I foresee some lengthy battles about what is and is not an act for this purpose. But even with pre-commencement – including authoritatively established – interpretations, the courts will have to decide whether or not to apply them. In doing so, they will have give great weight to the need to avoid applying an interpretation which would have an impact upon the ability of a public authority to perform its functions; undermine the public interest in allowing public authorities to decide how to allocate their resources; require the police to protect individuals involved in criminal activity or otherwise undermine their ability to decide their operational priorities; require an investigation to be conducted to a higher standard than is reasonable in all the circumstances; or affect the operation of primary legislation.

The particularly troubling aspect of this provision is that it appears to be telling the trial courts that they do not have to apply the law as authoritatively laid down in the higher courts. They are allowed to consider whether or not to apply it. But the likely impact upon the protection of victims of crime is also troubling.

The Government’s main target here was the Osman duty to warn individuals of threats to their lives, which the Consultation Paper says takes up a disproportionate amount of police time and resources, mainly for the benefit of people involved in criminal gangs or serious crime. If the Government wanted to stop this, it could easily have drafted the sort of targeted provision which has been adopted for deportation of foreign national criminals. Instead it has adopted a blanket provision which could affect the protection of some much more deserving victims.

A prime example, engaging article 2, is the young mother who was murdered by her partner because the police failed to respond promptly to her emergency calls when they could and should have done so (Michael v Chief Constable of South Wales [2015] UKSC 2, [2015] AC 1732). Another example, engaging article 3, are the women who fell victim to the ‘black cab rapist’, John Worboys. Multiple failings in the police investigation led to many more women being attacked than would otherwise have been the case (D v Metropolitan Police Commissioner [2018] UKSC 11, [2019] AC 196). A third example, engaging article 4, is the young man trafficked here from Pakistan to become the victim of modern slavery, whom the system failed to protect when it could and should have done (MS (Pakistan) [2020] UKSC 9, [2020] 1 WLR 1373). The Bill will potentially deprive all these people of a vindication of their human rights: and these are the most fundamental, absolute and non-derogable rights in the Convention, not the more controversial qualified rights, in particular under article 8. Most worrying of all to me was a recent piece on Radio 4’s Women’s Hour. A representative from Rights of Women complained of the effect, for example, on the Worboys case. A Government Minister gave a long account of everything the Government was doing to improve the protection of women from sexual violence – all very welcome, but she did not explain how this justified the removal of remedies from women who have been failed by the system. Now is not the time to be reducing the protection which the law gives to the victims of all sorts of violence and abuse.

There are other, more specific, provisions aimed at reducing the protection given to certain victims who are seen as undeserving. These include prisoners serving a custodial sentence (the definition of which is to be left to regulations) (clause 6). The court is to give ‘the greatest possible weight’ to the importance of reducing the risk to the public’ which they pose in deciding whether a Convention right has been breached, in particular in deciding whether he should be released from custody or placed in a particular part of a prison. They also include foreign national criminals (clause 8), where the Bill seems principally designed to insulate other laws from attacks on their compatibility with the Convention rights, specifically article 8: perhaps there is separately a plan to legislate for their removal unless this will cause ‘manifest harm’ to a member of their family that is so extreme as to override the otherwise paramount interest in removing them. Is this intended also to override cases such as ZH (Tanzania) [2011] UKSC 4, [2011] 2 AC 166, where the interests of her children prevented the removal of an illegal immigrant?

The Bill will also reduce the right to claim remedies in the UK courts. Claimants will in future have to obtain permission to bring proceedings under the Bill of Rights (clause 15). The court can only give permission if the claimant is or would be a victim and has suffered or would suffer a ‘significant disadvantage’, although it can also give permission for reasons of ‘wholly exceptional public interest’. ‘Significant disadvantage’ is expressly linked to the Strasbourg court’s criteria for declaring that an application is inadmissible because ‘manifestly ill-founded’. So it looks as if a claimant is not to be refused permission if Strasbourg would accept an application. But the UK courts will not find this an easy criterion to apply – especially if the interpretation of the Convention rights is uncoupled from Strasbourg’s interpretation. However, it will mean that claimants exhaust their domestic remedies sooner than they would if their claims were allowed to go ahead. So one can readily foresee that there will be more applications to Strasbourg and that more of them will succeed than would previously have done.

Even if the claimant gets permission and a breach is found, the Bill limits the remedies available. Damages can only be awarded if the claimant has suffered ‘loss or damage’ (clause 18(1)). I think that this is designed to knock the idea of ‘vindicatory damages’ on the head and limit claimants to compensation for the same loss and damage that they could claim in an ordinary civil action. Yet vindicatory damages can be an important tool in encouraging public authorities to comply with fundamental rights – for example, if a person is deprived of his liberty in cynical breach of his fundamental rights when it might have been done lawfully but wasn’t. Not only that, under the Bill, damages can only be awarded if the court is ‘unable’ to grant a remedy which would be just and appropriate without an award of damages. The court will have to consider the victim’s own conduct, if relevant, whether or not related to the breach of Convention rights – a clear hint that wicked people should not get damages for breach of their rights. And it will also have to consider the impact of an award on the ability of that or any other public authority to perform its functions – not only in this case but in any future case involving the same or similar issues. This is a consideration which does not apply to damages for the violation of ordinary rights by public authorities – clinical negligence claims spring to mind - so why should it apply to the award of damages for the violation of fundamental rights? And damages cannot be more than Strasbourg would award, which is usually modest by comparison with compensatory awards here.

The Bill also alters the relationship between the UK and the Strasbourg court in other ways. You will now all know, if you did not before, of Rule 39 of the Rules of Procedure of the Strasbourg court. This allows the court to ‘indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it’. The day before the first flight was due to leave for Ruanda, the court indicated that flights should not go ahead until the legality of the policy had been decided in the UK courts. The Government complied. But clause 24 does two things. First, a court is not to have regard to any interim measure in considering whether to grant relief which might affect the exercise of a Convention right. And second, no account is to be taken of any interim measure for the purpose of determining the rights and obligations of a public authority or any other person under domestic law. On the face of it, this is aimed not just at the courts but at anyone, including the Government. So the Government must ignore the interim measure in deciding what to do about the domestic position. It will still have to decide what to do about the position in international law – but the Convention itself only requires the UK to abide by final judgments of the Court. So I think that it has always been able not to comply with interim measures. But this opaque provision is no doubt a swift reaction to the Ruandan case and we may get greater clarity in due course.

Finally, how is all this going to work out in the very special environment which is Northern Ireland? I note that the Bill is the Bill of Rights Bill and not, as hinted in the Consultation Paper, a ‘British Bill of Rights’, so that particular pitfall has been avoided. But it does represent a particularly British – nay English - form of anti-European nationalism which may not play well with all the communities either here or in the other parts of the UK with devolved institutions.

One question already being asked is whether the Government will follow the Sewel Convention and seek the legislative consent of the Scots, the Welsh and the Northern Irish. But what is to be done while Northern Ireland does not have a functioning Assembly? Will that be advanced as a reason for not consulting the Scots and the Welsh as well? Or will progress on the Bill of Rights be delayed until progress has been made on the Northern Ireland Protocol?

If enacted, the Bill will apply throughout the UK, so the restrictions it imposes will cover human rights claims in Northern Ireland as well as in Great Britain. But another question is how it will affect the legislative competence of the Scottish Parliament, Welsh Senedd and Northern Ireland Assembly. An Act of the Assembly is ‘not law’ if it is incompatible with any of the Convention rights. The Convention rights will be those defined in the Bill of Rights. But that simply lists the rights contained in the relevant articles of the Convention and Protocols. So what if a Northern Ireland Bill is incompatible with the Convention rights as interpreted and applied in Strasbourg but not as interpreted and applied in the more restricted environment of the United Kingdom?

And what are the implications of the Bill of Rights for the Belfast Agreement? This contained a commitment from the UK government to complete the incorporation the Convention into Northern Ireland law, with direct access to the courts and remedies for breach. It also contained a commitment to comparable steps from the Irish Government to ensure ‘at least a comparable level of protection of human rights as will pertain in Northern Ireland’. These commitments can only have been premised on both parties’ adhering to the international standards as laid down in Strasbourg. It can’t have been premised on the UK Parliament unilaterally deciding what those standards should be. The Bill of Rights will water down the protection of human rights in Northern Ireland, thus potentially bringing about discrepancies between the level of human rights protection north and south of the border. The people of Northern Ireland will no longer be entitled to the same level of protection as the people of Ireland. How, for example, will the court’s duty to avoid applying an interpretation of positive obligations that would ‘require an inquiry or other investigation to be conducted to a standard that is higher than is reasonable in all the circumstances’ work out? It sounds reasonable enough but why is it there if not to water down the scope of enquiries into deaths for which the State may bear some responsibility? This is irrespective of the fate of the Northern Ireland Troubles (Legacy and Reconciliation) Bill.

Yet this is the reverse of what the Belfast Agreement contemplated: it spoke of the new Northern Ireland Human Rights Commission advising on the scope for defining rights supplementary to those in the Convention to reflect the particular circumstances of Northern Ireland. As I understand it, this has not yet happened, but it is a clear indication of the direction of travel contemplated in the Agreement.

This is, I regret to say, another example of the UK Government assuming the right to pick and choose which of its international obligations it will comply with. As Adam Wagner said in a letter to The Times, ‘The Bill of Rights Bill is nothing to do with common sense. Shamefully, it is the first “bill of rights” to weaken, not strengthen, rights protections’.

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