By Harriet Wistrich
Director, Centre for Women’s Justice
Dominic Raab’s Bill of Rights in its current form has been sold as a mechanism to reduce “risks to the public from convicted criminals”. In particular, it is claimed that the Human Rights Act 1998 (HRA) has helped dangerous murderers and serial rapists argue that they should be released from prison. Thus, by implication, the reform will improve safety for women.
However, the HRA has been a game changer because it actually provides a route for women to argue for increased protection against violent men. This is because it can impose positive obligations on public authorities to protect women in danger or ensure the safety of women more generally. Thus the replacement of the HRA with the Bill of Rights will undermine safety for women.
In a letter responding to concerns raised by Amnesty International on behalf of a number of organisations about the Government’s proposal to prevent the imposition of ‘positive obligations’ on public authorities, Dominic Raab replied,
“…it is important that the police (and public authorities generally) are able to exercise their professional judgment in operational decision-making, and the allocation of resources. Licensing or promoting litigation against the police and other public services is not an effective means of ensuring accountability, but instead skews public attention, priorities and resources – decisions which should be taken by elected Governments and MPs, not the courts.”
The importance of positive obligations
Positive obligations have evolved through the jurisprudence of the European Court of Human Rights over the past few decades and the European Convention on Human Rights (‘ECHR’) creates obligations on state bodies to positively enforce human rights. They can take a number of forms including:
- a duty to put in place effective systems of law and law enforcement machinery (known as a ‘systemic duty’)
- a duty to provide protection by preventing or bringing to an end threatened or on-going human rights breaches (known as the ‘operational duty’)
- a duty to carry out an adequate investigation after the event capable of leading to the prosecution of those responsible for a human rights breach (known as the ‘investigative duty’)
The case brought by two women I represented against the Metropolitan Police in respect of their abject failure to investigate serial rapist and black cab driver, John Worboys, relied on the third form positive obligation establishing that the police have a duty to investigate crimes committed by third parties causing serious harm such as rape.
Clause 5 of the Bill of Rights seeks to severely curtail the use of positive obligations in UK law. It states that:
‘The court cannot impose any positive obligations on a public authority on Convention grounds that was not already in existence prior to the Bill of Rights coming into force’.
Whilst that might appear to preserve the precedent established in the Worboys litigation, the Bill then goes on to set out a series of caveats that effectively allow opt outs by public authorities, if they can argue that it will impact on their resourcing and operational priorities.
So what are the implications, moving forward, if this clause of the Bill becomes law?
The Centre for Women’s Justice was established in 2016. It is a legal charity which aims to hold the state to account in relation to violence against women and girls. As well as bringing strategic litigation, we work with women’s organisations supporting victims and survivors of male violence on the frontline. Through that work we see the scale of failures by the police and other criminal justice agencies to implement the laws that exist to protect victims. The HRA has proven to be an extremely useful tool to challenge the police and others to make them do their job. It is often the only tool.
When we see the police failing to take steps to protect a victim of stalking, or social services failing to prevent girls from being groomed into sexual exploitation, or the CPS deciding not to prosecute an alleged rapist, we cite the duties enshrined in the HRA to challenge their inaction. Very often the threat of litigation has forced action without the need to commence legal proceedings. As a consequence, we have seen women at risk of serious harm protected, perpetrators investigated and sometimes convicted of serious crimes that they may have got away with but for the legal intervention.
One of the targets of the proposed clause 5 of the Bill of Rights is the resources apparently wasted by the police on the use of ‘Osman’ or ‘Threat to Life warnings’ that the police give. Raab has stated that police resources are used too often to give “tip-offs” to “gangsters who are fighting each other”. He argues that “time could be better spent … prioritising threats to innocent, law-abiding citizens”.
However, leaving aside the question as to whether someone drawn into gang life is worthy of protection (and increased understanding of County Lines tells us that many start as vulnerable kids exploited by older men), there are a range of other “innocent, law abiding citizens” whose lives may also have been saved by this important duty. We have seen, for example, such ‘threat to life’ warnings given by the police to a woman and her two children from her seriously violent partner which enabled them to be re-housed in a place of safety. Such warnings have also been of particular assistance to women and girls at risk of so called “honour” based violence.
The vital influence of the ECHR
Where women and children are murdered by violent men, the investigative duty under Article 2 (right to life) has been used to ensure that there is an effective investigation into state failures which in turn enables reforms to prevent repetition. For example, Article 2 compliant inquests were held in relation to the rape and murder of Lisa Skidmore by a man recently released from a long prison sentence, purportedly under the supervision of police and probation, and of five year old Alex Malcolm murdered by another man under probation supervision. The inquest process is critically important for bereaved families in their quest for justice, but it is also hugely informative for the state and provides an evidence base for political reforms aimed at tackling future risks. It therefore can protect the public at large.
Positive obligations also arise under Article 4 (prohibition of slavery and forced labour) and Article 8 (right to private and family life). For example, positive obligations arising under Article 4 have been used to challenge police and social services failures to intervene and investigate where there is evidence that a girl is being targeted by a grooming gang. A positive obligation to challenge a CPS decision not to prosecute a dangerous stalker, was relied on by Claire Waxman, the London Victim’s commissioner, in an Article 8 claim. We have since relied on that precedent to challenge police and CPS failures in respect of stalking cases.
The proposed Bill of Rights will, thus, seriously undermine the ability of victims and survivors of male violence and their advocates to hold criminal justice agencies to account and ensure they fulfil their duty to protect victims and effectively investigate and prosecute violent offenders. Why on earth are the Government, with a stated commitment to tackling Violence Against Women and Girls, supporting this retrogressive reform?