The government is consulting on reforming the Human Rights Act by replacing it with a Bill of Rights. This is expected to be one of the biggest constitutional changes in the UK for decades. The consultation is a golden opportunity to tell the government to ensure Christian freedoms are maximised in the proposed Bill of Rights.
The consultation deadline is 8 March 2022.
You do not have to answer every question. Below are some suggested points to make in response to the questions that we think are most important.
The consultation documents are available to read through.
Respond to the consultation online.
Background
The government proposes to revise and replace the Human Rights Act 1998 with a new Bill of Rights. This was first proposed by David Cameron in 2006. The Joint Committee of Human Rights published a report in 2008 recommending that the UK should adopt its own “Bill of Rights and Freedoms”. A Commission on a Bill of Rights delivered a report in 2012 in which a majority of its members believed that, on balance, there is a strong argument in favour of a UK Bill of Rights. No members wanted to finally reject the idea of a Bill of Rights. The present government pledged in its 2019 manifesto to update the Human Rights Act and this consultation seeks views on the government’s proposals.
The government intends to retain all the substantive rights protected in the Human Rights Act and strengthen some rights, including the right to freedom of expression, and add in the right to trial by jury. We welcome these proposals in principle and want to encourage the government to protect freedom of expression explicitly for employees and for street preachers.
The government also proposes to change the relationship with the European Court of Human Rights in Strasbourg so that UK courts may consider, but not be required to follow Strasbourg case law. The Christian Legal Centre has found in several cases that the Strasbourg court has been better at recognising Christian freedoms than UK courts. A well known case is that of Nadia Eweida, who won her case in Strasbourg on the right to wear a cross at work after losing in all the UK courts. The Strasbourg court has thus acted as a helpful check and balance on the UK courts. We therefore disagree with this aspect of the proposals.
Points to make in response to key questions
Below are some suggested points you can make in response to seven key questions from the consultation. Please make a few of those points that you want to support in your own words. You do not have to answer every question. You can remain anonymous if you wish. You can also save your response to the consultation if needed as you work through it.
I. Respecting our common law traditions and strengthening the role of the Supreme Court
Q1. We believe that the domestic courts should be able to draw on a wide range of law when reaching decisions on human rights issues. We would welcome your thoughts on the illustrative draft clauses found after paragraph 4 of Appendix 2 of the consultation document, as a means of achieving this.
- We believe that the Strasbourg court has provided a healthy check and balance on the UK courts and should therefore continue to be respected by the UK courts.
- The UK Courts must ensure that the level of protection afforded for freedom of expression and freedom of religion by Strasbourg case law is strengthened, or at the very least maintained.
Q2. The Bill of Rights will make clear that the UK Supreme Court is the ultimate judicial arbiter of our laws in the implementation of human rights.
How can the Bill of Rights best achieve this with greater certainty and authority than the current position?
- The UK Supreme Court must ensure that the protection currently given to freedom of expression and freedom of religion is strengthened or at least maintained.
- The same must apply to freedom of religion where Strasbourg has several times overruled the UK courts in favour of freedom of religion.
- Employees must have strong protection for freedom of expression so that they do not risk losing their jobs for expressing political or religious views on social media or elsewhere.
Q4. How could the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers through injunctions or other relief?
- We welcome the government’s proposal that “there should be a presumption in favour of upholding the right to freedom of expression, subject to exceptional countervailing grounds, clearly spelt out by Parliament.”
- Section 12 should be amended to ensure that ‘public interest’ is broadly defined. Decisions on press freedom often rest on whether or not something is “in the public interest.” The Bill of Rights should ensure that ‘public interest’ is broadly defined so that most things can be talked about in the press except in exceptional circumstances.
- Section 12 should be amended to specify that the courts should “give particular weight” to Article 10 on freedom of expression, instead of “have particular regard.” This will help to ensure that freedom of expression is given appropriate priority in press freedoms.
Q5. The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations in the consultation document. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?
- Article 10 (freedom of expression) protection must specifically include speech that “offends, shocks or disturbs.” The whole purpose of protecting free speech is so that people can say things that might shock, disturb or offend others without fear of prosecution or of losing their jobs. Protection of speech is not required for expressing opinions that are entirely innocuous.
- It should note that freedom of expression is “the essential foundation of a democratic society.”
- Political speech in particular must be given the strongest protection possible since democratic politics cannot function without people being able to express their political views.
- Academic freedom should be singled out for specific protection so that academics are free to research and disseminate information and knowledge without restriction.
- Journalists and the press should be given specific protection as is required in a free society.
- Any interference attached to free speech should be seen as an infringement of an individual’s Article 10 right.
Q7. Are there any other steps that the Bill of Rights could take to strengthen the protection for freedom of expression?
- We welcome the government’s proposal that “there should be a presumption in favour of upholding the right to freedom of expression, subject to exceptional countervailing grounds, clearly spelt out by Parliament.”
- All exceptions and limitations to freedom of expression must be strictly defined in law.
- Freedom of expression must be clearly stated to be “the foundational freedom on which a functioning democracy rests.” There should be a ‘presumption of legality’ on all speech.
- The Bill of Rights should make clear that for any speech to be illegal it should be clearly foreseeable by the speaker that it would be illegal.
- Redress for any illegal speech should only be obtained after the event to punish you for what you have said, not by preventing you from saying it.
- All other legislation should be interpreted in a way that is compatible with freedom of expression.
- All public authorities should be required to protect freedom of expression.
- All employers should be required to protect the freedom of expression of employees.
- Social media companies should be required to protect the freedom of expression of users.
- There should be a right of an individual to bring a claim for a breach of the right to freedom of expression against any person or organisation that has restricted that right, including an employer, the police, an educational establishment such as a university, or a social media company.
- Exemptions for freedom of speech such as those in Section 29J of the Public Order Act 1986 should be clearly stated and emphasised so that it is clear that criticism, insults, ridicule or abuse of particular religions or practices are protected under freedom of expression.
- Street preachers should be given specific protection in the Bill of Rights so that they are not arrested because of complaints of being offensive, ‘homophobic’, ‘transphobic’, ‘Islamophobic’ etc.
- Persuading someone to change their beliefs or religion should be clearly stated to be protected under freedom of expression.
- There should be no concept of ‘hate speech’ such that subjective offence is seen as grounds to restrict freedom of speech.
III. Preventing the incremental expansion of rights without proper democratic oversight
Q19. How can the Bill of Rights best reflect the different interests, histories and legal traditions of all parts of the UK, while retaining the key principles that underlie a Bill of Rights for the whole UK?
- The government consultation acknowledges the historic role played by Magna Carta and the Bill of Rights in establishing legal rights in the UK.
- These historic documents both explicitly reference God and in context that is clearly assumed to be the Christian God.
- Christianity has therefore formed the backdrop and underlying foundation of our historic tradition of freedoms in the UK.
- The Bill of Rights should clearly acknowledge the foundational role that Christianity has played in establishing freedoms in the UK.
- It is not clear on what other foundation rights can rest other than on the fundamental Christian belief that all people are created in the image of God and are therefore worthy of respect and freedom.
- The US Declaration of Independence acknowledges that “all men are created equal” and that “they are endowed by their Creator with certain unalienable rights.”
- The Canadian Charter of Rights and Freedoms, a much more recent document and part of Canada’s written Constitution, recognises that Canada is founded on principles of the supremacy of God and rule of law.
- It is widely recognised that the motivations behind the abolition of slavery and various other rights advancing initiatives in the UK was specifically Christian.
- The Christian heritage of the UK in advancing freedoms and rights should be clearly acknowledged in the Bill of R.
- Given the establishment of Christian religion, the Bill of Rights should recognise that these rights are endowed by God and recognised, not granted, by civil government.
Q23. To what extent has the application of the principle of ‘proportionality’ given rise to problems, in practice, under the Human Rights Act?
We wish to provide more guidance to the courts on how to balance qualified and limited rights. Which of the below options do you believe is the best way to achieve this?
Option 1: Clarify that when the courts are deciding whether an interference with a qualified right is ‘necessary’ in a ‘democratic society’, legislation enacted by Parliament should be given great weight, in determining what is deemed to be ‘necessary’.
Option 2: Require the courts to give great weight to the expressed view of Parliament, when assessing the public interest, for the purposes of determining the compatibility of legislation, or actions by public authorities in discharging their statutory or other duties, with any right.
We would welcome your views on the above options, and the draft clauses after paragraph 10 of Appendix 2 of the consultation document.
- While freedom of religion and freedom of expression are viewed as qualified rights, it should be for the courts and not Parliament to decide whether measures taken meet proportionality and necessity tests.
- Proportionality and necessity should be analysed under a strict scrutiny test, with a rebuttable presumption in favour of allowing greater freedom.
- The closure of churches in the United Kingdom under the Coronavirus Act 2020 and subsequent regulations evidences just how much of a threat to religious freedom it is when Parliament is the arbiter of proportionality and necessity. The Scottish church closures were struck down by the courts on these very grounds.
- Often the problem with human rights interferences is not with how a law is drafted but with how it is applied. It is therefore incumbent that courts be given the opportunity to ensure government powers are being used within a limited discretion, a discretion which is subject to constitutional scrutiny.
