When is a Right Not a Right? The British Bill of Rights

by | Jul 7, 2022

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About John Eekelaar

John Eekelaar (LL.B. (London) 1963; B.C.L. (Oxon) 1965; M.A. (Oxon) 1967, was a Tutorial Fellow at Pembroke College from 1965 to 2005; held a CUF Lecturership from 1966-91, and was Reader in Law from 1991 until 2005. He became part-time research fellow at the Oxford Centre for Socio-Legal Studies in the mid-1970s, and was a founder member of the International Society of Family Law and its President from 1985-8, and founding co-editor of the International Journal of Law, Policy and the Family. He was General Editor, Oxford Journal of Legal Studies (1993 – 2005). He was elected to a Fellowship of the British Academy in July 2001, and an (Honorary) Fellowship of King’s College, London in 2019. Apart from many edited volumes and journal articles, his books include Family Security and Family Breakdown (1971) Family Law and Social Policy (1978, 1984), Regulating Divorce (1991), Family Law and Personal Life (2006, 2007 and 2017) and (with Robert Dingwall and Topsy Murray), The Protection of Children: State Intervention and Family Life (1983) (with Mavis Maclean) Maintenance after Divorce (1986),. The Parental Obligation: A Study of Parenthood across Households (1997), Family Lawyers; the Divorce Work of Solicitors (2013), Family Advocacy (2009), Family Justice: the Work of Family Judges in Uncertain Times (2013), Lawyers and Mediators (2016) and After the Act (2019).

Image description: Front page of British Bill of Rights Bill. 

The Bill of Rights Bill, which repeals the Human Rights Act 1998, claims to ‘give effect’ to the rights set out in the European Convention on Human Rights. (Cl. 2). But its core aim is to ‘increase democratic oversight of human rights issues’ (Explanatory Note 2. B. p. 3). This aim is sought in a number of ways, one of the most important being set out in Clause 7.

Clause 7 applies when a court is to decide whether a provision in an Act of Parliament is compatible with a Convention right or whether a public authority acting in accordance with such a provision is complying with the right. In such cases the court must accept that Parliament has struck ‘an appropriate’ balance as between different policy aims, as between different Convention rights, or as between the Convention rights of different persons, and also ‘give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament’.

This is followed up by more detailed provisions, for example clause 8 sets out that the right to family life should not be held to override a deportation provision unless it causes ‘extreme’ harm which must be ‘exceptional and overwhelming’, ‘incapable of being mitigated to any significant extent or is otherwise irreversible’ and only in ‘the most compelling circumstances’, so that ‘the court could not reasonably conclude that the strong public interest’ in the removal ‘outweighs harm to a member of the potential deportee’s family’.

Since one of the most important functions of individual rights, including human rights, is to constrain the actions of those with power by re-distributing some of that power to individuals, it is clear that these provisions will result in a significant expansion of the power of the Executive over the lives of individuals. The fact that that power is expressed as vested in Parliament does not diminish this because under our system the Executive normally expresses its position through its majority in Parliament.

The proposal seeks to justify this by appealing to the principle of ‘Parliamentary democracy’. Yet this takes us little further. It might refer to the principle followed in referenda that the majority view should prevail. Yet under our system a Parliamentary majority is not necessarily equivalent to a majority vote by the electorate. But even if it were, individuals often require protection against those with power who are supported by a majority of the population, as history has shown us.

In his examination of the idea of democratic justification, Pierre Rosanvallon explains the importance of a range of social institutions that represent the values of impartiality, reflexivity and proximity that need to supplement electoral votes in conferring democratic justification for the exercise of power (Democratic Legitimacy, Princeton University Press, 2011). These institutions include oversight and regulatory bodies (such as financial, law enforcement, anti-corruption agencies), the media and constitutional courts. The last are crucial in developing and maintaining the balance between central power and individual interests.

While there is reasonable debate over whether the final decision should rest with the elected legislature or the courts, the question does not arise in a system where it is accepted that ultimately a statute can override the view of individual rights taken even by the highest court. But by the present Bill, the Executive is seeking to control the process by which the courts decide what rights an individual has. By dictating that the court must accept that Parliament has struck ‘an appropriate’ balance and give ‘the greatest possible weight’  to its (the Executive’s) view of the public interest, and even specifying the elements that courts are to apply when deciding what constitutes the individual’s rights in deportation cases, the Executive virtually extinguishes the possibility of being constrained by relevant competing individual rights. Of course, the Executive, through Parliament, creates and changes people’s rights all the time. But to claim to be affirming rights in a Bill of Rights and in the same document to practically nullify some of them when they conflict with the Executive’s views is another matter.

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