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Today, the UK Government presented its new Bill of Rights before Parliament, claiming that it will “restore a proper balance between the rights of individuals, personal responsibility and the wider public interest”. In reality, the new Bill will undermine the universality of all human rights and weaken the ability of courts to give effect to protection of fundamental human rights, including freedom of expression. It will expand state power and hamper efforts to hold the Government to account, joining other legislative measures – such as the Judicial Review and Courts Act 2022 – that have reduced the ability to challenge government overreach.
The Bill is set to replace the Human Rights Act, which has protected human rights and the freedom of expression of people living in the UK for over twenty years.
The Government claims that replacing the Human Rights Act with a new Bill of Rights will strengthen freedom of expression. As human rights organisations that promote and defend the right to freedom of expression worldwide, we unequivocally reject this false narrative. Freedom of expression is too important to be used as cover for weakening the protection of human rights. On the contrary, as detailed in our joint consultation response, the Human Rights Act has bolstered free expression in the UK in a number of areas: strengthened defamation law; enhanced protection of journalistic sources and material; strengthened protection of the right to protest; and restricted perception-based recording of non-crime incidents, among other things.
ARTICLE 19, Index on Censorship and English PEN believe that if the Government is serious about its purported goal to strengthen freedom of expression in the UK, it should instead focus its attention on reforming a number of problematic laws and legislative proposals it has brought forward, including the National Security Bill, the Online Safety Bill, the Higher Education (Freedom of Speech) Bill, the Public Order Bill, and the Police, Crime, Sentencing and Courts Act.
We urge the Government to abandon any proposal that would replace or weaken the Human Rights Act in any way. Moreover, it must follow the normal procedures for introducing new law – particularly a bill that could have such sweeping repercussions – and allow for proper, thorough democratic scrutiny of the bill. Rushing through such legislation could put the protection of human rights of the people in the UK at risk and fail to offer the levels of protection to which they are entitled, and which the Human Rights Act has already enshrined in law. One of the justifications for the Bill of Rights is to give greater weight to the views of elected lawmakers. By reducing the opportunity for these same lawmakers to scrutinise the Bill, it demonstrates the hollow commitment to democracy and the rule of law that underpins this Bill.
In the letter to Justice Secretary, Dominic Raab, this month, our organisations were among a coalition of 150 organisations from across civil society that called on the Government to provide pre-legislative scrutiny of the proposed Bill of Rights. We warned that the proposal to repeal and replace the Human Rights Act would be a significant constitutional reform, which requires careful and robust consideration. The rights of individuals could be compromised if such a process was hurried.
The next evolutionary stage of the court injunction has arrived: they now come “hyper” sized apparently.
John Hemming MP has introduced us to the idea — a week after using his parliamentary privilege to reveal the existence of a super injunction involving banker Fred Goodwin. You can read the (long-winded) transcript of the adjournment debate on the Bill of Rights at Westminster Hall in full here.
“I will come to what I call hyper-injunctions. One of the freedom of speech issues is that media organisations are generally commercial organisations, and there gets to be a point at which it is not worth their while trying to challenge the system and to get information out.
“With that, we return to the article nine issue [Bill of Rights] because our freedom of speech in the House is obviously on behalf of the citizens. We need to know of grievances so that we can raise them and talk about them publicly, so that the citizens of the UK can know.
“If it costs £20,000 or £30,000 in legal fees to write an article, in most circumstances a media organisation will just give up. The freedom of speech is basically sold down the river, because of the costs of the legal processes.”
Hemming described a case concerning the risk of toxic material in paint for drinking water tanks, in which a “hyper injunction” banned an individual from talking to an MP:
“There is a lot of stuff in that. It goes beyond a super-injunction; it is what I would call a hyper-injunction. It is an injunction in a case where someone is not even allowed to refer to the existence of these proceedings. There is the desire not to have the matter mentioned to Members of Parliament. There is also the interesting reference where it says ‘with the exception of lawyers or legal advisors instructed for the purpose.'”
“Parliament is here to protect citizens of the UK, not MPs. The individual who was trussed up by that secret hyper-injunction needs protecting. We all need protecting from water that people are being told to drink without being warned that there are potentially toxins in it. That causes me great concern. This is about protecting people, not about using money and wealth to get legal processes to gag people. There is a way round these issues, but it requires Parliament to stand up for the people and for people’s right to communicate with Members of Parliament.”
Subsequently, Henry Fox discussed the legal issues at play on the Inforrm blog, looking at “the ability of MPs to disclose confidential information in Parliament and the ability of the media to report on these disclosures in order to evade liability for contempt of court”.
“The media controversy that surrounds injunctions is likely to continue and it is thus possible to foresee ‘media-friendly’ MPs attempting to circumvent the secrecy of injunctions on a more regular basis. It may well be that Parliament will have to reconsider some of the measures it considered in 1999 to avoid any interference with the administration of justice.”
As reported on this blog last week, Gill Phillips, the Guardian’s legal editorial director, recently flagged up the main developments in the field. But for any real progress in the super injunction debate, as David Heath concluded in the Westminster Hall debate, “we must wait and see what the Master of Rolls has to say on the subject when he-or, rather, his committee-reports.” Publication is expected around Easter.