Protect legal adviser, Emma Darlow Stearn, discusses the potential negative impact on whistleblowers of the Bill of Rights Bill.
The Bill of Rights Bill (“the bill”), brought in to replace the Human Rights Act 1998 (“the HRA”), has been widely criticised by lawyers, academics and civil society organisations across the political spectrum as at best, counterintuitive and, at worst, a fundamentally bad idea.
As prominent human rights barrister, Adam Wagner, pithily puts it:
This government may be the first in the history of liberal democracies which enacts a bill of rights which has the effect of reducing rather than increasing rights protections.1
Legal academic Mark Elliott, meanwhile, remarks that ‘if the HRA “brought rights home”, the new Bill of Rights Bill involves sending rights back to Europe’.2 In his view, the bill (contrary to what is claimed) will likely lead to more cases having to be heard in the European Court of Human Rights, not fewer.
Threatening free speech
Of the bill’s many contradictions (and there are many – see Elliott’s article for a comprehensive analysis), the most concerning for Protect is that while claiming to bolster free speech protection, the bill may have the effect of undermining whistleblowing protection. It thereby threatens one of the most valuable types of speech, speech that is, by definition, in the public interest.
The bill has the potential to have a chilling effect on whistleblowing by making it harder for certain groups to qualify for legal protection when raising public interest concerns. The bill removes the interpretive obligation of section 3 of the HRA and does not replace it with an equivalent provision. This means that cases relying on human rights arguments, like Gilham v Ministry of Justice  UKSC 44 (“Gilham”), in which Protect intervened and in which whistleblowing protection was extended to include judicial office holders, may not be successful going forward.
Limiting the scope of whistleblowing protection
Currently, section 3 of the HRA means that any piece of UK law, which may give rise to a breach of the European Convention on Human Rights (“the Convention”), must be interpreted in a Convention-compatible way by judges, ‘so far as it is possible to do so’. It aims to have the effect of ensuring that the human rights we are all entitled to are upheld in the UK.
In its consultation on plans to reform the HRA, the Government specifically cited Gilham as a justification for removing section 3:
In 2019 the UK Supreme Court overturned the decisions of the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal, when it used section 3 to change the scope of employment rights under the Employment Rights Act 1996 by reading ‘worker’ much more widely than its natural meaning to include judicial office holders, to avoid incompatibility with Article 14 read with Article 10.3
The Supreme Court often overturns the decisions of the lower courts. That is an essential part of its role. Protect would also contest the argument that reading ‘worker’ to include judicial office holder takes it much wider than its ‘natural meaning’. Worker, in the context of whistleblowing law (the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998) already includes many individuals who are not ordinarily considered workers, such as agency workers and nurses/midwives in training. Acknowledging that judicial office holders (who perform a paid role) ought to be protected when raising public interest concerns seems, conversely, very natural. They have a lot to lose if victimised for doing so – at worst, their job. Denying them whistleblowing protection interferes with their right to freedom of expression, because it effectively silences them for fear of reprisal.
Section 3 allows human rights arguments to be put forward in cases like Gilham and its removal will prevent the scope of whistleblowing protection being extended to other groups in future, using similar arguments.
The value of judge-made law
The Government’s main criticism of section 3 is that they believe it leads to judicial overreach (Gilham being held up as an example), because it requires courts to ‘revise’ legislation in order to ‘ensure compatibility [with the Convention] without there being any direct or meaningful Parliamentary oversight’.4 It is worth noting, however, that there is much ‘revision’ of the law that occurs without ‘meaningful’ Parliamentary oversight.
It is not feasible to put every incremental shift in the law through the full parliamentary process. That is why we have a common law legal system. If the law develops in a way that is out of step with what the Parliament of the day sees fit, they can, and do, legislate to clarify their intentions. Of course, there are times when either the judiciary or the executive may be guilty of overreach but solutions to this must have appropriate nuance and not disregard the role that both secondary legislation and judge-made law play in our constitution.
Courts are already compelled to take into account legal precedents (case law) when interpreting legislation and forming judgments. In fact, there are whole areas of law that are judge-made: an individual is able to seek a legal remedy if their private information is misused or if they are injured by someone else’s negligence (to name a few of many possible examples), because the courts have developed laws that provide such protection. Our common law legal system carries the major benefit of enabling the law to evolve and reflect the times that we live in.
Section 3 doesn’t take the courts’ role beyond what it should be. It simply asks courts to take into account an Act of Parliament, the HRA, and the Convention rights it gives effect to, to make sure that the UK does not fall foul of its own international obligations to the Convention it helped create and remains a signatory to.
The justification for removing section 3 not only does not withstand scrutiny but is, in essence, precisely why Protect think it should be retained. Given that its absence may have the effect of preventing Convention rights from helping shape the law in future, for whistleblowers but also more widely, it is vital that its removal be reconsidered.
1 Adam Wagner of Doughty Street Chambers, Tweet 14th Dec 2021 https://twitter.com/AdamWagner1/status/1470724542511431680?s=20&t=D7jYbfFePVcmhm5bTH_CAw
2 Mark Elliott, ‘The UK’s (new) Bill of Rights’ https://publiclawforeveryone.com/2022/06/22/the-uks-new-bill-of-rights/