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Government's Legislative Programme:
A recurring theme of Conservative manifestos and Queen's Speeches has been a so-called "Bill of Rights" to replace the Human Rights Act 1998, which incorporated the European Convention on Human Rights into British law, using Brexit as impetus and framing the issue in a chauvinist manner as a matter of "British sovereignty", though the Convention is not an EU matter as such. The latest Queen's Speech, which set out a legislative programme characterised by rule by police powers , appears to have put this onto the agenda to actually be enacted this parliament. The new Bill will replace the Human Rights Act with legislation that aims to "ensure our human rights framework meets the needs of the society it serves". The back-to-front manner in which this poses matters itself exposes its intent. Rather than society being organised to provide objectively-existing rights with a guarantee, it sets out to define "rights" according to the demands of a society based on privilege.
Balancing rights, responsibilities and rule by police powers
At essence, the Bill is to implement the 2019 manifesto pledge to "ensure there is a proper balance between the rights of individuals, our vital national security and effective government," and follows a consultation stage that ran from December 14 at the end of last year to April 19 this year, just prior to the Queen's Speech .
The "balance" dogma is characteristic of successive governments, of whatever party, that are simply unwilling and unable to conceive of security lying with defence of the rights of all. But further, the present Bill is motivated by pragmatic deliverology, what the government calls "effective government". The interests of society lie with the government delivering on its decisions unimpeded, getting on with the job without rights getting in the way.
The Executive Summary of the consultation document states that "we will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society".
The government alleges that there has been a "growth of a 'rights culture' that has displaced due focus on personal responsibility and the public interest," and that "public protection" has been "put at risk by the exponential expansion of rights".
One might be forgiven for wondering where this "exponential expansion of rights" is to be seen. Regardless, "the increasing reliance on human rights claims over the years has, however, led to a culture of rights decoupled from our responsibilities as citizens, and a displacement of due consideration of the wider public interest."
Individual rights may need to be "qualified" by this need for "balance against the public interest", runs the argument. "Everyone holds human rights whether or not they undertake their responsibilities," says the government. "Nonetheless, the government believes that our new human rights framework should reflect the importance of responsibilities." What this means is that, under the Bill, courts could be required "to give greater consideration to the behaviour of claimants and the wider public interest when interpreting and balancing qualified rights," emotively asserting that "human rights claims have been brought by many people who have themselves showed a flagrant disregard for the rights of others." The groundwork here is being laid for arbitrary refusal to recognise one's rights on the basis that past behaviour has disqualified them from being able to claim such rights.
So the government states its intent to introduce a permission stage for human rights claims: "in the application of the qualified rights, the government believes that Parliament should authoritatively determine what is necessary in a democratic society. In addition, it should be clear that, when a court is considering the proportionality of an interference with a person's qualified rights, it will consider the extent to which the person has fulfilled their own relevant responsibilities."
Not only does the argument invoke a balancing act between rights, personal responsibility and the public interest, but also between parliament and the courts.
As the Noble Lord Judge remarked in the debate in the House of Lords: "I thought the words were going to be, 'Her Majesty's Ministers will restore the balance of power between the legislature and the Executive', because that is the relationship that needs to be addressed. [...] I just do not like a Minister by statutory instrument being able to revoke primary legislation, let alone secondary legislation. As for skeleton Bills, I find it absolutely extraordinary that we ever pass them. We say to ourselves: 'Let us give the Minister powers before the Minister has the slightest idea how he or she is going to exercise them.'"
The idea put across by the government is that parliament is being disempowered by the courts - the balance has been tipped in favour of the judiciary away from the executive and legislature.
According to the government, the existing Human Rights Act "requires the courts to alter the meaning of primary legislation in order to make it compatible with the Convention rights... diverting the courts from their normal function in the interpretation of legislation into straightforward judicial amendment."
The conception of this Bill of Rights, then, is nothing like setting out fundamental law through which other legislation is to be measured. In fact, it is the opposite: it aims to prevent any such barrier to rule.
In particular, the enforcement of the police powers must be unencumbered, as must military intervention. "We want to support those public services, from the police to our armed forces, who are dedicated to protecting the public," says the government. More plainly: "We want to protect our armed forces from human rights claims for actions taking place overseas."
A modern conception of rights and constitution
By invoking the notion of a "Bill of Rights", the government is trying to claim that their constitutional changes are in the historic tradition of liberal, representative democracy. It is this very thing - the form and content of representative democracy, and the class system on which it is based - that is in crisis. All that remains of liberal democracy is rule by police powers.
The notion of a bill of rights has a history. In Britain, its main reference point of relevance is the so-called Glorious Revolution of 1688, which was to draw a line under the period of the Civil War and instability from the beheading of Charles I up to that point. Representative democracy was aimed at resolving the contradictions between sections of the ruling classes, the conflicting interests of the rich and powerful, while keeping the masses of the people, the "mob", out of power.
It important in this regard that the definition of "rights" that the Bill will contain is not a product of any general discussion amongst the population. It is not the product of the people themselves creating a new society. The definitions are imposed; the Bill will define rights for a certain end, and is itself an act of the police powers.
It is not an issue of upholding the existing set-up: the very conception of rights implicit in the Human Rights Act is itself out of step with the times. It does not start from the principle that people have inviolable rights by virtue of being human which must be provided with a guarantee, as well as having particular rights, also inviolable, by virtue of being part of various collectives, such as being women, workers or national minorities. These are rights that exist objectively; a modern definition of rights stresses that society must recognise their existence and guarantee them. Both the current situation and the new Bill of Rights all point to the fact that it is the fight for a modern conception of rights that must be taken to its conclusion. The working class must turn things around in their favour, become an independent organised force in its own right and vest sovereignty in the people.
1. "Queen's Speech: A Programme of Rule by Police Powers and Politicising Private Interests", Workers' Weekly, May 21, 2022
2. "Human Rights Act Reform: A Modern Bill Of Rights, A consultation to reform the Human Rights Act 1998", Presented to Parliament by Dominic Raab MP (Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice), December 2021