Submission to the Government Consultation on Human Rights Reform
Less is more
Reading through your consultation, there is a real risk that you are overcomplicating it.
The Bible got it down to 10 commandments. Steve Jobs famously took mobile phones from an entire keyboard to one button.
Brevity means clarity and something that can be understood by the layman – essential for a truly universal bill of rights.
Politically, whenever the government has gone for bold simplicity they have seen a surge in popularity. Think ‘Get Brexit Done’ or abolishing all Covid restrictions. Boldness is a signal of leadership and confidence.
There is too much law and too much red tape. It is costly and it is leading to excessive bureaucracy, mission creep and failures in basic public service delivery.
Thus, my first recommendation is keep it short and simple. And abolish other rights declarations including exiting the ECHR. It has failed too many times. You acknowledge that we are in a better position to judge for ourselves domestically than international lawyers, so why not just get rid of the ECHR, and keep any bits you like in the new Bill of Rights?
When you create two sets of overlapping rules, you get confusion, ambiguity, opinion-shopping plus a lot of wasted time and money for everyone except lawyers.
Furthermore, to retain the ECHR is to admit failure from the get-go. It is to acknowledge that your new bill of rights has not done the job thoroughly and needs a back-up. This country does not need more half-baked bureaucratic gimmicks. Simple and complete would be better.
Overarching Common Law Principles Can Protect Us and Our Society
Centuries of common law already gives us protection; and this should be acknowledged in the Bill of Rights. Specifically:
· The principle of proportionality, including the de minimis rule (i.e. the law does not meddle with trifling matters). This would help cut back on governmental over-reach, thereby saving resources. This includes things like the police and courts getting bogged down with playground insults as hate crimes. This was recognised in the well received recent ‘non-crime hate incidents’ verdict. This is popular stuff too: People want the government to focus on the big stuff and not meddle in their personal lives.
· Justice wears a blindfold: As has been widely reported, certain social justice and environmental crusades have been judged above the law; thereby seriously undermining the rule of law and the notion of fairness: The rise of the 'Culture Control Left' is an affront to the rule of law - CapX
Further, citizens increasingly need protection from social justice crusades and woke-ism; which is leading to blatant discrimination (often disguised as affirmative action) and abuse.
· Ex turpi causa (no action can arise out of a base cause) and the equity principle that a plaintiff must ‘come with clean hands.’
If someone has behaved badly, and suffered as a direct result, they should not be able to use the Bill of rights. Indeed, specific groups should be excluded: such as convicted criminals (on matters concerning punishment, deportation, sentencing etc) and those who have entered the country illegally.
Protection from Discrimination: including Woke-ism and Affirmative Action.
The right to equal treatment needs to be strengthened to outlaw increasingly aggressive social justice measures, often disguised as ‘affirmative action.’ This includes things like quotas demanding certain types of ethnicities or genders. Or explicit job specifications or scholarships limiting applicants to certain groups or ethnic minorities.
This is, after all, discrimination. It is destroying social unity, fostering resentment and creating a victim culture. It hurts many of those who are most needy and vulnerable in society, just because they happen to be white or male.
Furthermore, by shifting our society towards one of equality of opportunity (not outcome) and meritocracy, we can increase productivity and reduce bureaucracy. That will help tackle the cost of living crisis and make us all wealthier.
Rights Should Be Limited By Teleological and Democratic Interpretations
Civil Law countries have a long tradition of teleological interpretation. In the UK, we call this ‘the mischief rule.’
The idea is you should interpret legislation in the way the legislature intended it at the time; thus applying it according to its original intended purpose.
This makes sense. If legislation is used in ways beyond what was intended, then clearly the rule of law has broken down. Worse still, you essentially end up with laws that no elected Parliament ever passed or even scrutinised. This is exactly what has happened to the ECHR since it was founded in the 1950s.
Any Bill of Rights should contain a teleology clause that neither its rules nor others should be stretched further than for what they were intended. This would avoid the mission creep of the ECHR.
Secondly, any Bill of Rights should only be interpreted only so far as the reasonable voter would approve of. We are a democracy. Society is paid for by voters and requires voters to buy in – government for the people, by the people.
You mention the democratic deficit repeatedly. The ECHR has been brought into disrepute largely because of its undemocratic decisions that the majority find abhorrent. These undermine the entire system. For human rights to endure, they must ultimately enjoy broad support across society.
This is not a new idea. The judiciary have for centuries used the ‘reasonable man’ test, or ‘the man on the Clapham omnibus.’ Rights should only go so far as the reasonable majority would allow.
Freedom of Expression Above All Else
Freedom of Expression should sit at the top as the most important and inalienable Right: the one to be prioritised over all others.
This is a near universal sentiment favoured by those who have fled regimes where the worst abuses occur. Freedom of expression ultimately protects everyone’s rights. It allows us to debate rights and obligations, and to expose abuse. It keeps everyone accountable.
Crucially it allows society to develop in a prosperous way. The best ideas win out and flawed ideas are crushed. Throughout history, only prosperous societies have been able to defend human rights. Yet prosperous societies need unbridled Freedom of Expression.
I would urge you to read this wonderful, very brief article from a billionaire philanthropist, who grew up behind the iron curtain. Peterffy: Freedom of Expression Is the Cornerstone of Liberty | Barron's (barrons.com):
It’s also why freedom of expression is not just another “freedom,” to be listed alongside others. The ability to speak one’s conscience and to debate ideas openly is the cornerstone of all freedom.
Abuse of Power by the Tax System
The tax system gets almost no mention. Yet taxation is what allows autocratic and lawless governments to survive. Tax allows a government to arbitrarily take all of somebody’s possessions and income away.
Your bill offers us zero protection from this.
We have seen tax increasingly rise.
We have seen the quantity of tax legislation explode along with the cost of compliance.
We have seen HMRC take increasing powers (including the power to reach into someone’s bank account and just take what they want!). Yet HMRC has also increasingly failed to meet any obligations, such as answering enquiries in a reasonable time.
A Bill of Rights must protect us from tax overreach. This one does not.
Two valuable principles are:
1 – The principle of proportionality. If government is going to have the power to compel taxpayers to give up their wealth and income or face imprisonment, that power should be used proportionally. Compulsory taxation should only be used for things that are important enough to justify such power. Citizens should be able to challenge wasteful or frivolous government spending under the principle of proportionality.
2 – Do as you would be done to. If HMRC can reach into our bank accounts, we should be able to reach into its accounts. If HMRC charges interest for late payments, we should receive the same rate of interest. If HMRC takes weeks to reply, we should be able to take weeks to reply. If HMRC can fine us, we should be able to fine HMRC for miscalculations, late payments and failures to respond.
The Right to Trial by Jury
You mention this repeatedly. Yet in many countries Jury trials are not used at all or are used far more sparingly. Is this not just a peculiar case of English sentimentality? The data on Jury Trials is (at best!) mixed in terms of miscarriages of justice, trials collapsing and costs. Class actions in the USA have a particularly troubled history.
For this to be included, you need to make a stronger case as to why a trial by jury is superior to a judicial trial. After all, the judiciary are members of society as well.
Further, if there is going to be a right to trial by jury, then there needs to be an obligation to be a juror. Many people have lost their livelihoods and businesses sitting on prolonged jury trials. It has even broken up families. Meanwhile public sector workers enjoy endless exemptions. Those exemptions must be removed. Everyone should have the obligation.
The Primacy of Parliament
Ultimately we are a democracy, and Parliament is the democratic locus of power and accountability. Thus, Parliament must retain the right to over-ride all national laws, including a Bill of Rights.
There needs to be a mechanism to do this explicitly. It should be included not just to apply to the Bill of Rights, but all domestic and international law. This mechanism can be made very simply.
I have written about such a mechanism, how it should work, and its constitutional standing. I link my research here:
No One Puts Priti Patel in the Corner (brainfartpolicy.com)
Without it, a bill of rights will fall over in the same way as the Human Rights Act has. It will ultimately be used by judicial activists and special interest groups to usurp the democratic will of the majority and their elected representatives.