Opinion: Three small ways in which a British Bill of Rights could improve on the Human Rights Act 1998

Every_Canadian_Needs_A_Copy

The title of this piece is fairly self-explanatory. As such, I shall get straight into the substance of my proposals:

1) Whereas any interference with a person’s human rights must be “necessary in a democratic society” according to the Human Rights Act 1998, let’s replace this test with “necessary in a free and democratic society” in the forthcoming British Bill of Rights

In recent years, it has become apparent that many in political life, as well as in our judiciary, would benefit from a liberal nudge when it comes to deciding cases involving our civil liberties. For the sake of brevity, I am not going to revisit every controversy in this regard, but suffice it to say, the Brown Government’s proposals for 42 days pre-charge detention, the Coalition’s plans to sanction “annoying and nuisance” behaviours in public places and the current Government’s proposals to turn Ofcom into a censor rather than review body were / are extremely concerning given our cherished status as a free country.

My amendment, borrowed from the Human Rights Act 2004 of Australia’s Capital Territory, New Zealand’s Bill of Rights Act 1990 and the Canadian Charter of Fundamental Rights and Freedoms, would help to focus minds in this regard, such that only the most serious instances of misconduct committed whilst exercising one’s fundamental rights would be punished under the law. Indeed, this alternative formulation has already served those countries well for a decade, two decades and three decades, respectively – countries, it is worth reminding ourselves, with more or less identical democratic and common law traditions to our own. As such, the question of “unforeseen legal complications” just doesn’t arise – if it can work there, it can also be made to work here.

2) Whereas Article 10 of the Human Rights Act (the right to freedom of expression) makes no specific mention of a right to offend, let’s clearly enshrine this in the forthcoming British Bill of Rights

In recent years, the right of free speech has come under repeated attack by a body of criminal law that prohibits even the unintentional causation of “harassment, alarm or distress”.

Take, for instance, the infamous ‘insult’ limb of Section 5 of the Public Order Act 1986. Under this provision, an elderly, atheist gentleman was warned that he could be arrested if he refused to take down a poster which read “religions are fairy stories for adults”, a Christian street preacher was convicted for holding aloft a placard that juxtaposed “homosexuality” with “immorality” and a protester was convicted for burning an American flag outside the US Air Force base at RAF Feltwell. The latter case was particularly concerning in that the presiding judge, Mrs Justice Hallett, held that Section 5 was compatible with Article 10. In other words, there is nothing in law that would prevent – or even strongly dissuade – MPs from enacting a similarly draconian statute in future.

With the proposed British Bill of Rights, however, we have an opportunity to pre-empt that eventuality. At a bare minimum, we could insert an oft-cited, free-speech-friendly passage from the case of Handyside v UK into the main body of its equivalent Article (necessary stylistic changes highlighted in bold):

The protections of this Article shall apply not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend or shock the State or any sector of the population.

This would also have the effect of clarifying to both the police and courts that, notwithstanding the aforementioned criminal provisions, we do have a right to impart offensive viewpoints in public with respect to matters of public interest.

3) Whereas Article 17 prohibits “…any act aimed at the destruction of any of the rights and freedoms set forth [in the Convention] or at their limitation to a greater extent than is provided for in the Convention”, let’s replace these restrictions with a more targeted ban on “act(s) aimed at overturning, or preventing the establishment of, the basic free and democratic order”

In its current form, the limitation limb of Article 17 is a censor’s best friend. Given that it is the responsibility of judges to determine the extent of the Convention’s various limitations – for instance, its highly subjective “rights of others”, “public morals” and “territorial integrity” exceptions – this clause is effectively saying “you cannot impart a different viewpoint to a judge (the ‘act’) with respect to the scope of our rights and freedoms (‘aimed at their undue limitation’)”. This is a manifestly unreasonable state of affairs – we should be perfectly at liberty to disagree with the judiciary over such matters (the right of prisoners to vote being a case in point…).

Likewise, if – as I suspect and hope – gay marriage is ultimately regarded as a human right by the British courts, and if, sometime thereafter, a devout Christian or Muslim were to express fundamental opposition to that approach, would not his / her right to do so be similarly imperiled by the destruction limb of this Article?

Notwithstanding the above, a strong argument could be made that we should all be united in support of the basic idea that we live in a free and democratic state. After all, without that shared understanding, a civilised society – one that is grounded on the principles of non-violence, limited government and the rule of law – just isn’t possible.

Sadly, that understanding is not shared by all. I am referring, of course, to the likes of Anjem Choudary and the many (front) groups he has established over the years in order to brainwash impressionable young minds into believing, amongst other things, that man-made law is unworthy of respect and that Sharia should be implemented in its stead.

My formulation, borrowed in part from Article 21 of Germany’s Basic Law, would enable the authorities to take action against such individuals or groups whenever they advocate lawlessness or theocratic absolutism of this kind, whilst removing much of the ‘chilling effect’ (i.e. ‘the potential for self censorship’) that appends to rights-based discussions under the current wording of Article 17.

 

Every Canadian Needs A Copy” by Marc Lostracci – originally posted to Flickr as Every Canadian Needs A Copy. Licensed under CC BY 2.0 via Wikimedia Commons.

 

* Ben Boult is a politics graduate of Keele University and a freedom of speech campaigner

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15 Comments

  • “…Notwithstanding the above, a strong argument could be made that we should all be united in support of the basic idea that we live in a free and democratic state..”

    Except that we do not live in such a democratic state. We live in a “kingdom” in which a so-called “royal family” has rights and privileges that the rest of us can only dream of.
    We should work to achieve a democratic state but let us not pretend that we are there already. Under this government things are moving in the opposite direction.

    In the week when the political sympathies of some members of the so-called “royal family” are still being hushed up after more than 80 years it ought to be clear that we are little more than pawns on a feudal chessboard, pushed around by a ruling elite, the bankers and corporate vested interests.

    We should oppose Cameron and not try to be too clever by amending his proposals.

  • Matt (Bristol) 20th Jul '15 - 11:37am

    To my surprise, a set of perfectly sane and sensible proposals. But given that the USP of the proposed Bill of Rights for the Tory press was the tautological nonsense that it should only apply in the ‘most serious cases’, even amending the Bill of Rights (whilst it may be attractive as an escape-route from complete Goveian insanity) may still leave us with less rights than under the HRA. What you are proposing are really enhancements to the HRA.

    Meanwhile, the entire NHS and social care sector is in the midst of a wholesale reassessment of how Article 5 (the right to liberty) applies to those who are unable to make decisions for themselves in hospitals, care homes and even at home, with major changes to the appropriate legislation proposed by the Law Commission in the wake of severaln (slightly contradictory) landmark court rulings last year:

    http://www.communitycare.co.uk/2015/07/14/deprivation-liberty-first-thoughts-law-commissions-reform-proposals/

    My opposition to the BoR is in part based on the fact that it could set this essential work back years with its spurious ‘most serious cases’ criterion which makes almost no sense in this practical, day to day context.

  • We live in a “kingdom” in which a so-called “royal family” has rights and privileges that the rest of us can only dream of

    Name six ‘rights and privileges’ the Royal Family (not the Crown the legal institution, but the individuals who are part of the Royal Family) have that the ‘rest of us can only dream of’.

    In the week when the political sympathies of some members of the so-called “royal family” are still being hushed up after more than 80 years

    Whoever was trying to ‘hush up’ the fact that Edward VIII was a Nazi sympathiser didn’t do a very good job! It’s pretty much one of three things everybody knows about him.

  • Dav asks us to name six “rights and privileges” enjoyed by the Royals that the rest of us can only dream of …

    1. The heir to the throne has access to lobby ministers with his … interesting … views on a variety of issues

  • The heir to the throne has access to lobby ministers with his … interesting … views on a variety of issues

    I think that counts as a privileged level of access to government, yes.

    So that’s one. Five more.

  • I agree with the ideas behind your amendments, but there are plenty of people that won’t agree with their implications, especially on the “right to offend”. A lot of people around here have worked to have offensive material (trolling, revenge porn, etc) banned, so they’re unlikely to support a bill that trumps all of that.

  • Neil Sandison 20th Jul '15 - 1:03pm

    Given there is a lack of trust in the conservative government protecting our rights in a British Bill of Rights and defending the HRA gives the impression that we are just out to maintain the existing Act.
    Should we consider amending the existing Act along the lines Ben has suggested perhaps with cross party/benches support through the Lords ? .It would remove it from the party political domain and make a new British Bill of Rights obsolete before it was published.

  • People think that the role of the royals in politics is confined to the Queen performing purely ceremonial tasks like the rubber-stamping of Government Bills.

    This is just false.

    The government is obliged to seek the consent of Prince Charles on any matter which might affect his interests as Duke of Cornwall. Prince of Wales etc. More than twenty Bills across a wide range of policy have been submitted for his approval in the last few years. We are not talking about a rubber-stamping exercise once a Bill has completed its passage through Parliament. He gets to see and comment on drafts and amendments as they proceed through each stage of the legislative process. We have no idea what amendments may have been made to legislation at his request as the whole process is shrouded in secrecy. But it is naive in the extreme to imagine that his lobbying efforts backed up by the threat of veto have had no effect on legislation. Far from being apolitical Charles has more direct political power than most Cabinet Ministers.

  • ChrisB

    “especially on the “right to offend”. A lot of people around here have worked to have offensive material (trolling, revenge porn, etc) banned, so they’re unlikely to support a bill that trumps all of that. ”

    The revenge porn thing should be dealt with under the right to privacy, I haven’t noticed LibDems demanding an end to trolling but if they have they should be told where to go, the only thing that makes Twitter bearable is the trolling parody accounts.

    Which raises the observation that there should be a longer list of changes that are needed to the HRA such as limiting all the qualifications much more, and codifying more under certain rights (particularly Privacy).

  • Richard Underhill 20th Jul '15 - 4:08pm

    One of the main aims of the Human Rights Act was to make provide access to law sooner and more cheaply than going to the European Court of Human Rights at Strasbourg. There fore we should press for the inclusion of Articles 1 and 13.
    Article 1 because the convention is incomplete without it, people still need to go to Strasbourg.
    Article 13 because if there is an effective remedy it is argued anyway.
    https://en.wikipedia.org/wiki/Derry_Irvine,_Baron_Irvine_of_Lairg

  • To echo Richard, I would also like us to opt-in and incorporate into domestic law all protocols to the Convention, and ratify the Charter of Fundamental Freedoms.

  • jedibeeftrix 20th Jul '15 - 4:45pm

    Excellent article. Agree particulalry on the right to offend.

  • Richard Underhill 20th Jul '15 - 5:03pm

    Sarah Noble is right. It was always intended than when the Humans Rights Act had settled in it should be treated as the norm and built on.

  • Psi Chris B, isn’t there a difference between harassing an individual and offending a group?

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