The Sad and Cynical Spectacle of the Draft British Bill of Rights

It is a habit peculiar to autocracies to choose names for themselves that are the exact opposite of their true nature – viz. the ‘Democratic People’s Republic of Korea’ – and to have constitutions loudly proclaiming the protection of individual rights that are routinely trampled upon in practice. You would have hoped that one of the world’s oldest democracies, the United Kingdom, would not work from the same style manual. But it’s 2022 and apparently anything goes – so yesterday the UK Government finally unveiled its long-promised and awaited draft Bill of Rights, which will now be considered by Parliament. Let’s hope that Parliament actually manages to do so something with this Bill – not that we should hope much – because what the Government has produced, contrary to the conclusions of even the independent review that it had itself set up, is nothing short of an embarrassment.

You would think that a piece of legislation that takes for itself the lofty name of a ‘Bill of Rights,’ with all the historical baggage that this name brings, would actually give British people more rights than they currently have under the Human Rights Act 1998, which the Bill repeals. But no. Like the HRA, the Bill contains only those rights that are in the European Convention on Human Rights, annexed in a schedule to the Bill. There are no additional rights, such as – God forbid – economic, social or cultural rights like housing or food, or newer generation rights such as the right to a clean and healthy environment or access to the Internet. There is no innovation or experimentation of the kind attempted in the bills of rights in modern constitutions, as in South Africa. No, no such rights-expanding innovation here. The only attempt at including a right not in the ECHR is the recognition in clause 9 of the right to trial by jury. But even this is pretty thin and embarrassing stuff, since the clause essentially says that people have the right to a criminal jury trial whenever the law already recognizes such a right. And clause 4, which is supposedly meant to strengthen protection for freedom of speech, is expressly inapplicable in criminal and immigration proceedings. I mean come on.

Everything else in this Bill of Rights is about diminishing rather than expanding the effective protection of human rights in the UK. That is its singular purpose. It imposes new barriers to litigating human rights cases, e.g. a permission stage in judicial review proceedings under the Bill. It takes away significant powers from British judges, such as the interpretative authority under s. 3 HRA. In a bizarrely drafted provision (clause 5) it prohibits judges from imposing ‘new’ positive obligations on public authorities, while subjecting ‘old’ positive obligations, like say the Osman duty of the police to protect individuals whose life is under threat, to a series of novel and nebulous conditions.

The saddest aspect of this Bill of Rights – which frankly I don’t believe has an equivalent in any other democracy – is how it singles out vulnerable, politically unloved categories of people, such as prisoners and foreigners, precisely those who need the protection of the law the most, and does so solely with the purpose of restricting their rights. Thus, clause 6 of the Bill, entitled ‘public protection’, essentially requires courts to narrowly interpret and apply all ECHR rights of individuals in custody except the right to life, prohibitions of torture and slavery, and the guarantee of no punishment without law, subjecting all other rights of prisoners to the need to give the ‘greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences in respect of which custodial sentences have been imposed.’ God knows what this will mean in practice.

Similarly, clause 8 of the Bill attempts to almost entirely preclude the possibility that individuals subject to deportation may rely on the right to private life in Article 8 ECHR to prevent their deportation. It is clear that the drafters of the Bill would have wanted nothing more than to just say Article 8 could never be a bar to deportation, but doing so would have been contrary to long-standing jurisprudence of the European Court. And so the drafters instead opened their thesaurus and dumped into clause 8 every word they could think of to restrict the reliance on Article 8 as much as possible. Thus, under clause 8(2) deportations can only be contrary to the right to private life if they would ‘result in manifest harm … that is so extreme that the harm would override the otherwise paramount public interest in removing’ the person from the UK. ‘Extreme’ harm is then defined in clause 8(3) as one that is ‘exceptional and overwhelming’ and not ‘capable of being mitigated to any significant extent or is otherwise irreversible.’ And then clause 8(4) further tries to limit ‘extreme harm’ solely to relationships between the deportee and their children, and not any other relationships that the deportee might have (e.g. with their parents), subjecting these to an additional ‘most compelling circumstances’ test. Just consider how all this stuff would apply to a deportation of a (childless) young adult offender who has foreign nationality, but who grew up in the UK (and became a criminal in the UK) while having no real ties to the country of his nationality.

And then we come to what is probably the most egregious provision in the Bill – clause 14, which categorically excludes the possibility of domestic judicial proceedings for the conduct of British armed forces in overseas military operations. This of course relates to the whole question of the extraterritorial application of the ECHR, and is meant to preclude the domestic litigation of cases such as Al-Skeini or Serdar Mohammed regarding the conduct of British troops in Iraq and Afghanistan, but also of cases such as Pritchard and Smith that concerned the rights of British soldiers against their own state, e.g. because they were exposed to serious harm without the provision of adequate equipment by the UK. This is all being done, so the Bill’s authors tell us, because ‘[d]omestic and Strasbourg case law has extended beyond the intent of the Convention’s drafters.’ The effect of this clause would be that any individuals in such a position would be able to skip the British judicial system entirely – with the possible exception of any available proceedings in tort – and just go to the European Court directly. In other words, this clause, like the ones I already discussed, deliberately opens up a gap between the protection of human rights under the ECHR as understood by the European Court and the protection of human rights available domestically.

But wait, there’s more – we should look at the drafting of clause 14 closely. What it does is preclude the use of domestic judicial proceedings, but it does not actually preclude the substantive application of the new Bill of Rights to the conduct of British troops abroad. As written, clause 14 is essentially an exception to clause 13 of the Bill, which creates domestic judicial remedies for violations of Convention rights. Yet the substantive duty of British public authorities to comply with Convention rights is not found in clause 13, but in clause 12(1) (‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’), a reproduction of current s. 6(1) HRA. In other words, Her Majesty’s armed forces deployed abroad would, as public authorities, have the substantive legal obligation to comply with Convention rights to the extent that these apply extraterritorially. What clause 14 does is to remove the judicial remedies against any breaches of such obligations, essentially creating a form of domestic immunity from jurisdiction. It is of course complete nonsense to say that this in any way comports with the original intent of the Convention’s drafters. Not only is the evidence of their intent on extraterritoriality issues extremely limited and not genuinely useful in any real way (as I and others have explained over decades of scholarship), but whatever their intent was it certainly wasn’t to have the Convention apply in substance but for there to be no effective remedies for any breaches – on the contrary, Article 13 of the Convention would squarely go against any such interpretation. And there is precisely zero evidence in the drafting history of the Convention that the armed forces should be granted immunity from liability.

But let’s go back to the many riches of the unfortunate clause 14. Its second paragraph provides that judicial remedies under clause 13 will be unavailable even if the act or omission complained of was committed in the British Isles, where ‘(a) the act is done (or proposed to be done) wholly for the purposes of overseas military operations, and (b) at the time the act is (or would be) done the person is (or would be) outside the British Islands.’ This is presumably meant to exclude situations such as, say, drone operators in the UK making targeting decisions on striking a person outside the UK. But the way this is drafted opens up many uncertainties, which I am sure will be litigated ad nauseam if the Bill is passed. Consider first the requirement that the act within the UK is done wholly for the purpose of overseas military operations – what about situations in which the act also has some other, additional purpose? Or consider the second requirement that at the time the act is done the person is outside the UK – so how will this apply (say) to procurement and deployment decisions made in the UK while a British soldier is in the UK? Think again of cases like Smith where British soldiers are deployed to say Iraq without adequate body armour, or vehicles, or some other equipment. In a chain of events that ultimately leads to the soldier’s death abroad most of the relevant decisions were done in the UK while the soldier was in the UK.

Clause 14(4) then seems to expressly exclude judicial remedies for violations of procedural duties to investigate. But again as I explained above these duties continue to apply in substance, not just as a matter of international law, but also as a matter of domestic law – clause 14 simply precludes their judicial enforcement. As the Bill is written, however, the British armed forces and other authorities are still bound by domestic law to conduct independent and effective investigations, say under Article 2 ECHR, as set out in cases such as Al-Skeini or Hanan.

And then, to top the whole thing off, is the issue of the scope of this judicial carve-out in clause 14(6), which defines the term ‘overseas military operations’ as

any operations outside the British Islands, including peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of Her Majesty’s forces come under attack or face the threat of attack or violent resistance.

Note what this does not say – the clause contains no reference to war, international armed conflict or non-international armed conflict, or to the applicability of international humanitarian law. It rather uses a curious formulation of overseas operations in the course of which British soldiers ‘come under attack’ or face the threat of attack or violent resistance. From what I can tell with a bit of googling this formulation was first used in the Corporate Manslaughter and Corporate Homicide Act 2007, s. 4(2), which essentially provided that the Ministry of Defence owes no duty of care for purposes of establishing negligence in such a situation (the same language is then also used for policing in the UK). This wording then migrated to the (rightly maligned) Overseas Operations (Service Personnel and Veterans) Act 2021, which limits criminal prosecutions for British troops on overseas operations. The idea that this idiosyncratic and unclear language somehow comports with the original intent of ECHR drafters with regard to the Convention’s extraterritorial reach is, of course, risible. And just consider situations like, for example, an overseas drone strike in which British forces are not under attack (but are themselves attacking) nor can seriously expect a ‘threat’ of such attack, say because the terrorists on the ground can’t see the drone or lack the equipment to neutralise it. Or consider aerial bombardment or cruise missile strikes and the like. These would seem to me to at least arguably not qualify as an ‘overseas military operation’ within the meaning of clause 14.

Bottom line: there is no normative justification of any kind to give British armed forces a form of domestic judicial immunity, which is what the Bill does. Imagine if some other state enacted the same law. Would we really be content to say that the conduct of the Russian armed forces in Ukraine is not a human rights issue, or should not be properly scrutinised by courts? None of the killing, none of the destruction of the cities, none of the rape, none of the deportations, none of the surveillance of the population – none of it? How could this position be justified by any broader principle other than political expediency? And even on political expediency, how can British politicians argue to their electorate that British soldiers should also have no judicial remedies against the state? And all this while the Bill of Rights would apply extraterritorially in substance, just like the Convention? I just fail to understand this. Simply put, this is not a bill about genuinely protecting individual rights, on this issue or the others I discussed. This is a bill that sets the stage for future showdowns between Britain and the European Court, which will inevitably harm the integrity and authority of the Convention system, and serve as another vehicle for the ‘culture wars’ that the present British Government seems to be so interested in waging.