If enacted in its present form the Bill of Rights Bill would compromise judicial independence, dilute ECHR rights protection, and undermine the principle of parliamentary democracy that it purports to protect. The Bill seeks to repeal the Human Rights Act 1998 (HRA 1998) in full and replace it with legislation which, according to a Government press release, will ‘ensure courts cannot interpret laws in ways that were never intended by Parliament’. It also seeks to inject a ‘healthy dose of common sense’ into courts’ protection of Convention rights.

The Bill removes the interpretive obligation in section 3 of the Human Rights Act 1998 but retains the system of ‘declarations of incompatibility’ (DOI) in section 4 (now clause 10 of the Bill). Under the HRA 1998, a declaration of incompatibility has no legal effect on an Act of Parliament. It simply alerts the Government and Parliament to an incompatibility with Convention rights. Parliament remains sovereign and retains complete legislative freedom. In practice, most incompatibilities are addressed by either primary or secondary legislation. Ministry of Justice statistics on responses to DOIs are available here.

However, Clause 7 of the Bill seeks to undercut the DOI power by obliging reviewing courts to treat Parliament’s approach to any balance struck between Convention rights and public policy goals in legislation as ‘appropriate’. Courts must also ‘give the greatest possible weight’ to the ‘principle’ that decisions about balancing Convention rights and policy decisions, choosing between conflicting Convention rights, and mediating the rights of different persons are properly the province of Parliament.

These obligations risk emptying the power to issue a DOI of any effect. It is difficult to see how courts could undertake the declaration of incompatibility evaluation as a free-standing exercise if they are bound to ratify the conclusions of Parliament as expressed in the legislation under review.

Clause 7 also risks compromising courts application of the principle of proportionality. Although the HRA 1998 was silent on the standard of review that should be applied by courts, proportionality has been the accepted standard since the House of Lords decided Daly in 2001. Proportionality is widely accepted as the ‘gold standard’ in human and constitutional rights adjudication. Originally developed in Germany, it spread to the European Court of Human Rights, the Canadian Supreme Court, and several courts in East Asia.

In its modern incarnation, proportionality provides a four-part structure which requires the Government to justify the balance struck between ECHR rights and other public policy goals. To be proportionate (and lawful) legislation must be: (1) sufficiently important to justify the limitation of a Convention right, (2) rationally connected to the objective, (3) the least restrictive means of achieving that objective, and (4) must strike an overall appropriate balance between the Convention right and the public policy goal.

This proportionality structure can be applied with varying intensity, allowing courts to respect the expertise of Parliament or the executive. Such respect is often given in particular areas, such as national security, or with regard to complex moral issues (such as assisted suicide). Conducting a proportionality analysis does not predetermine the outcome of specific cases. It simply promotes a legal culture in which interference with fundamental human rights must be publicly justified.

Clause 7 seeks to prejudice the proportionality exercise by compromising any independent evaluation conducted by a reviewing court. It is difficult to see how the DOI procedure could be used effectively if courts are required by statute to treat the balance struck by the impugned legislation as ‘appropriate’ on its face.

The justification for clause 7 on the face of the Bill is to protect and ensure the primacy of judgements reached by the legislature in a parliamentary democracy. But this reflects a myopic and unsophisticated understanding of parliamentary democracy. If courts are not permitted to reach independent conclusions, then, as Lord Reed explained in UNISON v Lord Chancellor:

laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade.

Parliamentary democracy only flourishes in a complex constitutional ecosystem which includes sufficient respect for the rule of law and the separation of powers. The Human Rights Act 1998 has contributed to this flourishing for over two decades. This, of course, occasionally generates rulings which may be controversial, or the subject of widespread disagreement. But the pursuit of perfection should not be the enemy of the good.  The Bill of Rights Bill risks the regression of parliamentary democracy, not its realisation.

The Foreign Law Clerks scheme was established by Supreme Court Justice Aharon Barak to allow judges access to international perspectives. During my Clerkship I worked directly for Justice Neal Hendel, discussing approaches to cases, drafting judgments, and preparing briefs on foreign jurisprudence (from the UK, USA, Canada, the EU judicature and the European Court of Human Rights). The legal subject matter was diverse, including criminal law, tort, discrimination law, tax law, electoral law, freedom of expression, and public order law.

My reasons for choosing the Israeli Supreme Court were twofold: First, I was interested in working in a legal system which owed its genesis to the British ‘un-codified’ constitution, but had been gradually drifting from these roots. Secondly, my research on counterterrorism law left me curious about a jurisdiction which operates under an ever-present existential threat—Israel has been in a continuous ‘state of emergency’ since 1948, and securitisation affects every aspect of daily life. During my stay there were several terrorist attacks in downtown Jerusalem, and several more in other cities.

In her discussion of constitutionalism, Lerner includes Israel in her taxonomy of ‘deeply divided societies’. For Lerner, Israel ‘is still very far from fulfilling the requirements of a liberal democratic system, and the Israeli polity should be understood in terms of an “ethnic democracy” or even a non-democratic “ethnocracy”.’ The Israeli Basic Law mandates that the State of Israel shall be both ‘Jewish’ and ‘Democratic’, and these values are occasionally at odds with one and other. Coming from a post-independence referendum Scotland, where discussions of national identity were conspicuous by their absence, the ubiquitous discussions of the nature and identity of the state came as something of surprise. Israeli demographics from 2014 recorded that the population was c. 75% Jewish, 20% Arab-Israeli, and around 5% from other identities. The Supreme Court has historically been seen as a defender of the rights of minority-citizens in Israel. Additionally, there is frequent political conflict between the secular and religious communities, in particular the secular and ultra-orthodox Jewish communities.

Unlike the British Supreme Court, the Israeli Supreme Court has a prominent place in the national psyche. Its decisions are divisive. Even as I arrived in Israel in December, the media reported on tensions between the Knesset and the Supreme Court, regarding the length of time asylum seekers could be detained without judicial proceedings, and how this related to the right to liberty.

During my stay I travelled widely, including into the occupied territories over which the Court has jurisdiction. Whilst the inside of the Court is reminiscent of any Western liberal democratic judicial institution, the city of Jerusalem which surrounds it is awash with contradictions: at once ancient and modern, at once as peaceful as a temple, but simmering with discontent.

I was at the Court in a time of transition. The term of the conservative and right-wing Supreme Court President Grunis was coming to an end. In his final judgment, the court held that Mustafa Dirani, a Lebanese Militia fighter, did not have standing to sue for his alleged torture at the hands of the Israeli Defence Forces (analysis available here). The Palestinian Authority also accepted the jurisdiction of the International Criminal Court (ICC) after their bid to secure Israeli withdrawal from the Occupied Territories at the United Nations failed.

As I left Israel a new government was forming with Benjamin Netanyahu continuing as Prime Minister. This could have significant consequences for the Supreme Court. Since 2009, several Bills (including one by Netanyahu’s party, Likud) had been proposed which sought to limit the Supreme Court’s power to invalidate statutes which contravened the Basic Law. Whilst this may seem unexceptional to a British lawyer, it is notable that there is no second chamber in the Knesset, which provides additional protection to human rights, and societal divisions are much more acute. There is also no right of petition to an international court after the exhaustion of domestic remedies, in the same manner as is available in respect of EU law and Convention rights in the UK. The isolation of the Israeli Supreme Court makes its role all the more vital.

There is much to be gained from immersion in another legal system. What we take for granted (or even resent) in our own society comes much more sharply into focus. In this regard OPBP internships can be of great benefit to individuals regardless of whether their long-term goals lie on the front lines of public interest law or the relative comfort of the Ivory Tower.

This week the Joint Committee on Human Rights published its Report on the UK Justice and Security Bill. Hayley Hooper provides an overview of the Bill and the Report’s conclusions.

Jeremy Bentham wrote that ‘publicity is the soul of justice’. Currently, the British government are of the view that where national security is at stake, publicity must yield. The Justice and Security Bill aims to extend Closed Material Procedures (CMPs), beyond the certain specialist tribunals and clearly defined statutory procedures into the realm of ordinary civil justice. You can access all the information about the various stages of debate here, and the Guardian newspaper has also published an informative Essential Guide. The next stage of debate is the Report Stage in the House of Lords. In anticipation of this the Joint Committee on Human Rights (JCHR) published a Report on the Bill this week. Its central concern is that the Bill represents an unprecedented departure from the British constitutional tradition of ‘the right to an open and adversarial trial of a civil claim’.

The Government claims the Bill is required to protect the confidentiality of information obtained via international intelligence sharing relationships, known as ‘the control principle’, and to protect national security in general. In Binyam Mohamedthe Court of Appeal authorised the publication of seven paragraphs, already in the public domain, relating to the treatment of Mr Mohamed whilst detained during the US ‘War on Terror’. The information had been received by the UK under the ‘control principle’, which the Court of Appeal upheld, despite denying the Foreign Secretary’s application for Public Interest Immunity (PII). The Report reveals that the US Administration reacted unfavourably to the judiciary overruling the Foreign Secretary on a matter of national security.

The Bill responds to this by removing any real judicial discretion in the initiation of a CMP, and by marginalising the role of PII. The JCHR Report criticises this both on human rights (including those rights indigenous to the common law) and rule of law grounds. The concerns of the Independent Reviewer for Terrorism, David Anderson QC, that the provisions of the Bill, if made law, could be used in an anticipated wave of litigation related to British cooperation with US-led drone warfare are also noted. One such case, Noor Khan, is currently undergoing judicial review in the High Court.

The Bill is more moderate than the controversial Green Paper, released in October 2011, which proposed wide-ranging powers to extend the scope of secrecy in civil litigation. Initially, CMPs were proposed in civil cases containing ‘sensitive material’ to protect the ‘public interest’. The Bill restricts the availability of CMPs to cases where disclosure of material may be ‘damaging to the interests of national security.’ The Report welcomes this, but cautions that overly broad definition remains a risk, recommending a statutory definition of the ‘interests of national security’ be adopted.

Other reservations expressed in the Report include the ouster clause related to the Norwich Pharmacaljurisdiction at common law. The Norwich Pharmacal jurisdiction could be used to require government to disclose information related to wrongdoing by a third state. Furthermore, concerns were expressed at the proposed exclusion of the media from court proceedings, and the failure to extend the ‘gisting’ of closed information mandated in control order proceedings by virtue of Home Secretary v AF (No. 3) to civil proceedings proceeding involving a CMP. ‘Gisting’ is the practice of providing a summary of closed evidence to the affected person in order to allow him to present an effective challenge to the allegations against him in a manner compatible with Article 6(1) ECHR.

The JCHR remains ‘unpersuaded that the Government has demonstrated … that there exist[s] a significant and growing number of civil cases in which a CMP is “essential”, in the sense that the issues in the case cannot be determined at all without a CMP.’ Their Report urges ‘necessity’ as the appropriate standard the use of a CMP, which must be judicially, not ministerially, determined.

All of the JCHR’s suggested amendments have now been tabled before parliament. The Justice and Security Bill will be a litmus test for parliamentarians. It will require them to hold government to account in their most controversial and secret of undertakings, while thinking seriously and rationally about the appropriate relationship between human rights and security.

Hayley is a lecturer at Trinity College and a DPhil candidate at Balliol College, University of Oxford. She previously worked on the AHRC Funded Project ‘Parliaments and Human Rights’.

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