More anti-protest police powers were a flagship in the latest Johnson legislative programme announced in this week’s Queen’s Speech. But what about the less noisy announcement of a ‘Bill of Rights’ to ‘restore the balance between the legislature and the courts’?
Tribune readers will be more aware than most of the chilling subtext to this statement, especially given that the recent raft of anti-protest provisions was designed to overturn the courts’ protection of peaceful dissent. Final debates in both Houses of Parliament around the Nationality and Borders Bill also revealed a great deal about the Johnson government’s attitude to the Rule of Law. They were almost a dress rehearsal for what is to come.
The Human Rights Act 1998 is one of the finest constitutional achievements of Labour in government. It incorporates the European Convention on Human Rights into domestic law and is enforceable in every court and tribunal here, so victims of violations need not spend many years trying to reach the Strasbourg Court with its very long delays. It lays out protections for the right to life (including adequate investigations into deaths in custody and fatal accidents at work), freedoms from torture, cruelty, forced labour, and arbitrary detention, rights to a fair trial and respect for privacy and family life, freedoms of conscience and expression, and it stipulates that all these rights must be delivered without discrimination.
A cursory glance at its provisions demonstrates that it should be crucial to the labour movement. Privacy is necessary for seeking advice, whistleblowing, and collective organising. There are issues of freedom of conscience in many employments and indeed in political and union organising itself. The right to protest is encompassed within freedom of expression and freedom of association includes both the right to join a trade union and to take strike action. Non-discrimination encompasses blacklisting or otherwise penalising members of unions.
Section 2 of the HRA requires domestic courts to ‘take account of’ decisions of the European Court of Human Rights, but they are expressly not bound by them. This way our courts can apply rights principles within our domestic cultural and legal traditions (like jury trials), but also contribute to the human rights jurisprudence across the Council of Europe. Section 3 provides that ‘so far as it is possible to do so’, all legislation must be read compatibly with the Convention rights, including employment, trade union, and public order legislation.
Section 4 provides that when legislation is too clearly in violation to be given an alternative reading, the courts will make a ‘declaration of incompatibility’. This does not overturn the offending law (thus respecting parliamentary sovereignty), but has moral and persuasive effect, like asking government and Parliament to ‘think again’. And Section 6 provides that all public authorities must (unless incompatible primary legislation forces them to do otherwise) act in compliance with the Convention rights. Crucially, public authorities include all courts and tribunals (including when interpreting contracts of employment and exercising discretion), ministers when making secondary legislation (including on employment and benefits), and police officers in the context of picket lines and other protests.
In other democratic jurisdictions with written constitutions and entrenched bills of rights, the highest courts usually have a power to strike down unconstitutional laws. In the UK, the primary constitutional principle is of parliamentary sovereignty, which is respected by the HRA mechanisms of interpretation, declaration, and quashing unlawful executive discretionary action. If any of these are diluted or scrapped, we risk being left with non-existent human rights protections in our courts.
The Human Rights Act has restrained government abuses of our rights, even where in practice they have not always been wholly protected. In recent years a whole raft of draconian legislation giving extremely broad powers to the executive and its agents (police, military, security services, etc.) has been excused by ministers desperate for an argument on the basis that every broad discretion must be exercised in compliance with the Human Rights Act. But any new Bill of Rights is being created with the clear intention of undermining what restraints there are—so imagine, for example, the CHIS Act power to grant advance criminal immunity from prosecution to undercover agents and ‘spycops’, or the new police powers to add noise restrictions to demonstrations, without even the restraints represented by the Human Rights Act.
This is clearest when it comes to workers’ rights. We are told that our courts will no longer have to take account of decisions of the European Court of Human Rights in Strasbourg, and some on the left might imagine this an opportunity to grant greater protection for workers’ rights in particular. Not a bit of it. The government stipulates that courts will be allowed to diminish Strasbourg protections but not exceed them. The reality is of a right-wing government that rejects the scrutiny of courts at home and internationally.
The new Bill will jettison the duty to read legislation compatibly as far as possible. Who knows what this will mean for over twenty years of precedent where quite antiquated legislation has given effect in a modern manner that doesn’t discriminate against vulnerable groups without the need for parliamentary amendment or repeal. Indeed, the leading case involved re-reading ‘as man and wife’ under the Rent Act so that the surviving same-sex partner of a deceased tenant could stay in the family home.
This is especially bad news for all our devolution settlements, which were designed and negotiated with ECHR compliance as a given. It is disastrous for Northern Ireland, whose peace was delivered via an international treaty with these human rights standards as an absolute requirement. Contrast the great Good Friday Agreement of 1998 with the tawdry Maundy Thursday plan for ‘offshoring’ asylum seekers to Rwanda.
Ministers specifically want to limit the obligation upon public authorities—including and especially themselves—to comply with human rights and the role of the courts in holding them to account. Ordinary people will be denied access to court to argue a violation with their rights if they cannot demonstrate ‘significant disadvantage’. We have yet to see how this significance will be defined by the millionaires in the cabinet for people struggling on Universal Credit or zero hours contracts. Court remedies will be denied to foreign nationals and be conditional on the ‘good behaviour’ of those seeking redress.
You need not be a ‘lefty lawyer’ or historian to understand the ways in which violations of poor and marginalised peoples’ rights are dismissed as trivial or somehow justified by their own conduct, especially when they rebel against oppression. Given the many massive executive power grabs of recent years, the assault upon the Human Rights Act is hardly surprising, but even more dangerous. It is now up to the Labour Party and the labour movement as a whole to respond.