The Future Lawyer Weekly Briefing – W/C 3rd July 2023

‘ELIMINATION’ OF THE BILL OF RIGHTS BILL

On the 27^{th of} June 2023, British Justice Secretary Alex Chalk confirmed that the British government would not introduce or implement the Bill of Rights Bill, which former Justice Secretary Dominic Raab previously proposed. The non-implementation follows concerns raised by several bodies from the legal sector, MPs, as well as human rights organisations.

However, Mr Chalk stated that Parliament remains supportive of ‘a human rights framework which is up-to-date and fit for purpose and works for the British people’.

It is necessary to understand the intention behind the Bill of Rights Bill and how it could have impacted the legal sector.

A brief outline of the Bill

The Bill of Rights was to repeal and replace the Human Rights Act 1998 (HRA 1998), which incorporates the European Convention on Human Rights’ (ECHR) provisions into UK legislation.

Upon its enactment, the Bill of Rights would have retained the Convention rights and their direct enforcement capabilities in national courts, and it would have granted British courts supremacy over rulings of the European Court of Human Rights (ECtHR).

Some of the proposed measures included:

• Introducing a new permission stage requiring claimants to prove that they have suffered or would suffer serious disadvantage due to a breach of their rights before taking their claims to court.
• Introducing a higher threshold for challenges to deportation orders against foreign national offenders based on the right to family and private life.
• Removing the duty on courts to ensure they interpret national laws in line with Convention rights.
• Removing the duty on courts to consider the methods used by the ECtHR in interpreting rights.
• Removing the courts’ requirement to provide further weight to Parliamentary views when balancing human rights.
• Withdrawing the rights of challenge against the Ministry of Justice from British soldiers stationed or serving abroad in cases of mishap or ill-treatment.

Potential impact on the legal sector

The UN, through its High Commissioner for Human Rights, voiced its concerns about the Bill’s enactment, including that it ‘would fundamentally change the role and independence of the UK courts by establishing a list of considerations and restrictions that UK courts must apply when adjudicating and interpreting the rights established in the ECHR’.

According to The Law Society, the Bill of Rights would have impacted access to justice and the rule of law, reduced or removed rights, and as an overall consequence, created legal uncertainty. Additionally, access to courts would be limited, as well as the courts’ capabilities in offering protection and remediation to those whose rights are violated.

For others, the Bill’s introduction would have clarified the government’s alleged intention of limiting the public’s right to hold it accountable for human rights violations, with the added unease as to how the UK would fulfil its obligations under the Universal Declaration on Human Rights (UDHR).

When queried of the Bill or of the reasons for its enactment, Mr Raab could hardly give concrete reasons in response, going so far as to say that he rejected the criticisms, being that they ‘rested on a flawed understanding of the UK tradition of liberty’. On learning of the U-turn, he expressed that it was disappointing to see the opportunity for deporting more foreign criminals and further strengthening freedom of speech disregarded. He had little to say on the remainder of the Bill’s proposals.

Considering the fierce opposition it received, it was perhaps best the Bill was shelved, a sentiment shared by The Law Society’s president Lubna Shuja. She said that ‘scrapping the bill is the right decision because it would have created an acceptable class of human rights abuses, weakened individual rights and the UK would have moved away from its international human rights obligations’.

Briefing by Eadie Dziemidowicz

AUTHORITATIVE CASES WITH CONTINUOUS INFLUENCE IN ENGLISH COMMON LAW

The common law emerged in England during the Middle or, rather, Dark Ages (circa 476 to 1450 AD), initially through royal courts, making its way into the formalised settings we are familiar with today.

It is defined as such because its principles were, and still are, applied equally across the country, and it is the law as asserted by the judiciary.

English common law is based on the central and binding doctrine of ‘stare decisis at non quieta movere’ (‘to stand by things decided and not disturb settled points’) or stare decisis for short. This means that judges must follow the decisions of higher courts.

Case highlights

It is almost impossible to sum up the number of cases managed in English common law since records began, although it is estimated that just 2% are reported in law testimonials.

Typically, the importance of these reported cases, in addition to commissioning a better understanding of jurisprudence within specific jurisdictions, is the establishment of common law precedents or principles following their outcomes, a constant in the common law. Their authoritative status in English law and its legal system are still of consequential relevance today.

Some of these cases are highlighted below.

The Case of Proclamations [1610] 77 ER 1352

The Crown is gifted with the power of Royal Prerogative, although this is now primarily exerted through the government. This power was the precursor to disputation in 1610 between James I (1603 – 1625) and the then Parliament. One of the powers then attached to the Royal Prerogative was that of impositions, that is, the ability to impose a duty on imports, sometimes disproportionately so, to regulate trade and protect domestic production.

Parliament had previously agreed to such an imposition by James I. Nonetheless, the King saw fit to increase said imposition without Parliament’s consent. Also, there was the issue of whether it was acceptable for the King to use his prerogative to interdict new buildings and prevent wheat starch production.

After consideration of the mentioned issues, Chief Justice Sir Edward Coke and other pre-eminent judges decided that the King’s reach was limited as he had not been granted the statutory power to change the laws of the land.

The Chief Justice stated that ‘the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm’. Further, ‘the King hath no prerogative, but that which the law of the land allows him’.

This pseudo-case (as there were no formal adversarial aspects to it) reinforced the rule of law and its application to all with the Crown included and the judiciary’s obligations in upholding it, as well as signifying the importance of parliamentary sovereignty and the separation of powers.

Worlledge v Manning (1786) East, 26 Geo. 3 CB: 129 ER 34

Otherwise known as ‘the Great Gleaning Case of 1786’, this case arose following a dispute concerning gleaners’ rights. Gleaning is the collection of leftover crops following a commercial harvest without prior consent from the landowners, resulting in purported gleaners’ rights. This practice was habitual among the deprived as means of sustenance.

The issue was that Mr Manning ventured into the harvest fields of Mr Worlledge to glean barley. However, Mr Worlledge was unwelcoming, disputing gleaners’ rights, and brought a trespass case against Mr Manning in the Court of Common Pleas. Mr Worlledge’s claim was successful, and he was awarded damages and costs, with the Court espousing that gleaning rights are non-existent in common law.

This case set the precedent that private property rights should be thoroughly enjoyed without interruption. However, it wasn’t until Steel v Houghton that this principle was complemented and cemented as one of the most significant in English legal history.

R v R [1991] UKHL 12

In his treatise on criminal law, ‘The History of the Pleas of the Crown’ (published in 1736), Sir Matthew Hale said of marital relations, ‘…the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract’. This anachronistic social norm, otherwise known as the marital exemption, was the primary ground for the dispute in R v R.

In 1989, a husband broke into his estranged wife’s parent’s house and attempted unconsented to relations with her. He was arrested and pled his defence based on presumed marital exemption. His defence was dismissed, and he was convicted of attempted rape. He eventually progressed his appeal to the House of Lords, but the Court upheld his conviction.

Lord Chief Justice Lord Lane stated, ‘the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections, is no longer acceptable…the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with the victim’.

Unfortunately for Sir Hale and proponents of his ideals and fortunately for society, changing social attitudes are consistently reflected in law. Therefore, per s. 1 of the Sexual Offences Act 2003, a husband commits spousal rape if he attempts to or engages in sexual activities with his wife against her will or without express consent.

A and Others v Secretary of State for the Home Department [2004] UKHL 56

Otherwise known as the ‘Belmarsh 9 Case’, this case concerned the then lawful extended detention of 9 non-UK nationals. They were detained under high-security conditions at HMPs Belmarsh and Woodhill as suspected international terrorists under s. 21 of the Anti-Terrorism, Crime and Security Act 2001 (sponsored by the then Home Secretary, Mr David Blunkett) without a trial or prospect of release as per s. 23 of the same Act. As a result of the circumstances for which the detention was made possible, they also faced deportation.

Using their rights to appeal under s. 25 of the Act, the detainees challenged the lawfulness of their detention as they felt it infringed on their right to liberty and security as per Article 5 of the ECHR. A derogation from Article 5 is only permissible if there is an evidenced threat to national security.

On a majority of 8 – 1, the House of Lords granted their appeal and agreed that the detention conditions were incompatible with the ECHR. Remarkably, despite being the dissenting judge, Lord Hoffman offered a scathing commentary of the Act, stating that on the facts of the case, there was no ‘state of public emergency threatening the life of the nation’ and that ‘the real threat to the life of the nation…comes not from terrorism, but from laws such as these’.

Parliament subsequently motioned support, declaring that ‘derogation from international human rights obligations is injurious to the standing of Britain in the world and causes profound damage to community relations domestically’. Further, ‘detention without trial represents a breakdown of the rule of law and can only hinder protection of public safety and security’.

The decision by the House of Lords is considered the biggest shakeup in the UK’s constitutional law in more than 50 years, resulting in the repeal of ss. 21-32 of the Act by the Prevention of Terrorism Act 2005, although the latter has since been nullified by s.1 of the Terrorism Prevention and Investigation Measures Act 2011. It also led to the almost immediate resignation of Mr Blunkett.

There are many, perhaps better-known cases with still existing authoritative status in the common law; for instance, you’ve Donoghue v Stevenson, Entick v Carrington, and Carlill v Carbolic Smokeball Co. Owing to the dynamic nature of the common law, those cases mentioned above will inevitably cease to hold status; new cases will command judicial interpretation in alluding to changes in societal sentiments, thereby setting contemporary principles and precedents.

Until then, the current status quo reigns supreme.

Briefing by Aqua Koroma