Written Evidence by the Article 11 Trust (BOR0070)

About the Article 11 Trust

1. Established in 2020, The Article 11 Trust is a UK-based charitable organisation working to defend and advance the rights to freedom of assembly and association under Article 11 of the European Convention on Human Rights (ECHR).

2. We help legal support groups to ensure people at protests know their rights. We facilitate ground-breaking research and education projects to push threats to protest rights into the spotlight. We help to empower the public to push for social justice through exercising their rights.

Background

3. In our submission to this inquiry we shall predominantly be focusing on the potential impact that we foresee the proposed Bill of Rights having on Article 11 rights, that is the right to freedom of assembly, as well as the effect on the rights to freedom of thought conscience and religion and the right to freedom of expression contained within Articles 9 and 10 of the ECHR.

4. We note that The Independent Review of the Human Rights Act found that the Act is working well and much of the proposed changes detailed in the documentation provided for this consultation extend far beyond the evidence-based recommendations made in the review.

5. We note that the Joint Committee on Human Rights, the Justice Committee, the Lords Constitution Committee, and the Public Administration and Constitutional Affairs Committee, state that the proposals set out in the Bill of Rights are of “supreme constitutional significance and have the potential to impact on the rights of individuals for many years to come.”

6. We also note the concerns raised by: the UN Special Rapporteur on the independence of judges and lawyers; Working Group on Arbitrary Detention; Special Rapporteur on extrajudicial, summary or arbitrary executions; Special Rapporteur on the rights to freedom of peaceful assembly and of association; Special Rapporteur on the human rights of migrants; Special Rapporteur on contemporary forms of slavery, including its causes and consequences and Special Rapporteur on trafficking in persons, especially women and children, regarding the proposed Bill of Rights.

Relationship between the UK Courts and the European Convention of Human Rights

7. We are concerned that if adopted the Bill of Rights would significantly change the independence of the UK courts by establishing restrictions that would curtail the UK courts ability to adjudicate and interpret ECHR rights. This would significantly limit the power of the UK courts to enforce the rights included within the ECHR, including the rights included in Articles 9, 10, and 11 that are of concern to this submission. The Bill also allows the UK courts to interpret a right in a way that “diverges from Strasbourg jurisprudence”.

8. The Human Rights Act 1998 protects the human rights of everyone, and crucially, ensures that public bodies are obliged to uphold and advance human rights. The proposed removal of public bodies positive obligations is of particular concern to the Article 11 Trust. Our work across the UK to protect and advance Article 11 rights to freedom of assembly and association depends in large part upon holding public bodies such as the police accountable for not only avoiding human rights-violations, but for protecting and advancing human rights.

Interpreting and applying the law compatibly with human rights

9. Clause 5 aims to restrain the UK court’s ability to place positive rights obligations on public authorities through their creation of ‘new’ positive obligations. The removal of the ability to create new positive human-rights obligations from the UK courts onto public bodies such as the police would seriously harm the rights and ability of all to peaceful protest which is a fundamental tenet of a functioning democracy.

10. Clause 5 not only threatens human rights by preventing courts from reaching new interpretations of convention rights regarding positive obligations on public bodies, but also by discouraging courts from applying positive obligations that have been identified in previous cases. This could “lead to legal uncertainty and to divergence from the case law of the ECtHR”.[1]

11. This is also a direct threat to the right to effective remedy as protected by article 13 of the ECHR. Landmark cases under the Human Rights Act have relied on such obligations: for example, survivors of the Hillsborough Disaster were able to “expose the negligence of state officials, using the positive obligation to investigate alleged breaches of the right to life.”[2]

12. Clause 7 would potentially hinder the ability of UK courts to adjudicate on decisions relating to a challenge to the implementation of a provision of an Act by a public authority in a way that could impact on ECHR rights. In these cases, the proposal in the Bill of Rights is that the UK courts need to give the “greatest possible weight” to the wishes of Parliament, thereby limiting the UK court's ability to conduct necessity and proportionality assessments. This clause could be understood as also encroaching on the independence of the UK courts and the judiciary as it is calling for a deference to the UK parliament in these matters.

Enforcement of Human Rights: Litigation and remedies

13. Any modification to the enforcement and protection of ECHR rights in the UK would have an impact on the right to effective remedy and therefore impact on the enjoyment of ECHR rights. The right to effective remedy is not just a right protected by ECHR rights but is also a right included in a number of international treaties that the UK is a party to. The UK is expected to protect, respect, and fulfil human rights as a party to the human rights treaties that it has ratified. For the reasons we have outlined above we understand that the proposed Bill of Rights would be a regressive step in both domestic rights attainment but also a regressive step with regards to the UK’s international human rights commitments.

14. Clause 15 proposes that individuals must establish that they have either suffered or would suffer a ‘significant disadvantage’ before they are allowed to bring cases against public authorities in cases that relate to violation of ECHR rights before the UK courts. This additional new “permission” stage could be understood as creating additional barriers on access to ECHR rights and the right to an effective remedy.

15. By making it harder to challenge human rights violations at home, the proposed changes will likely increase the number of time-consuming and costly cases going to the European Court of Human Rights (ECtHR) which would previously have been dealt with in British Courts with regard to (but not bound by) ECtHR precedents. The proposed introduction of a ‘permission stage’ will further serve to harm human rights in the UK by ensuring that less cases reach court and fewer public bodies are held accountable. The erosion of human rights in the UK, particularly the negative impacts on Article 11 Rights to freedom of peaceful assembly and association, resulting from a number of clauses of this Bill, is a clear and severe cost of the proposed change to legislation.

Specific Rights issues

16. Clause 4 states that the UK courts must “must give great weight to the importance of protecting” the right to freedom of speech, which is defined as the “Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).” The change of the substance of the right from freedom of expression to freedom of speech will likely mean that the UK courts will not have to pay due regard to ECtHR case law and this will weaken the protection of this right in the UK.

17. The omission of physical acts in Clause 4 by specifying “a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form)” fails to recognise the importance of freedom of assembly and association as a crucial component of freedom of speech, and threatens Article 11 convention rights. Indeed, ECtHR precedent asserts that “The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association enshrined in Article 11” (emphasis added).[3]

18. It is also of concern that the Bill of Rights is proposing that the UK courts give greater weight to one ECHR right over another in all cases thereby contradicting the notion that all human rights are indivisible and interdependent. It will also hinder the UK courts’ ability to make independent judicial decisions in cases where it is having to balance competing rights.

17. If the UK Government is concerned about creating a better protection of Article 10 rights, a better avenue might be to reform or reject current or proposed pieces of legislation that seriously curtail this right, in particular the Police, Crimes, and Sentencing Act that has given wide discretion to police forces in their ability to limit public protest.

18. The Human Rights Act 1998, by providing individuals with the ability to claim their ECHR rights in front of the UK courts, has bolstered the right to freedom of expression. We therefore conclude that the proposed changes in the Bill of Rights to supposedly better protect the right to freedom of speech are regressive and will not lead to better rights protection.

Recommendations

19. The government has not sufficiently justified the necessity for revoking the Human Rights Act.

19. By contrast, the measures proposed in the Bill of Rights Bill as it stands, pose a serious risk to human rights in Britain. We are particularly concerned with the grave threat several clauses of the Bill of Rights pose to Article 11 Rights to freedom of assembly and association.

20. On this basis, the Article 11 Trust strongly recommends that the ‘British Bill of Rights’ is abandoned in its entirety, and that the Human Rights Act 1998 is preserved in its current form.

26/08/2022