The new Bill of Rights Bill was published on 22 June 2022 and there seems little doubt that the proposed legislation, if enacted as currently drafted, would create a significant shift in rights culture and fundamentally change how Convention rights can be relied upon.
The Government has been on a path to reforming human rights law for some time, following its 2019 manifesto pledge. The Independent Human Rights Act Review (IHRAR) was established in December 2020, with the panel's report submitted to the Government in October 2021. The report proposed only limited changes to the Human Rights Act 1998 (HRA).
The Government then launched a consultation in December 2021 which closed in April 2022. The consultation paper expressed a view that the operation of the HRA in practice was flawed. Having published the Bill, the Government says that it is seeking to strike what it regards as a "proper balance" of rights and responsibilities, individual liberty and the public interest, and the Courts and Parliament.
But is that what the Bill does? We look at the key points arising from the proposed new legislation.
Continuation of Convention Rights
The UK will remain a party to the European Convention of Human Rights (ECHR) and the Bill enshrines the Convention rights as under the HRA. However, the Bill also seeks to limit how these can be relied upon by claimants compared to the current position under the HRA: there is a clear divergence from the ECHR. A key principle in the Bill is that as a parliamentary democracy the assumption should be that decisions on the balance between policy and Convention rights are "properly made by Parliament". A clear aim of the Bill is to shift law making away from the Courts and allow the executive to have more control about how Convention rights are used, and by whom.
Compatibility of legislation
The UK Courts would no longer be required to read or give effect to legislation in a way that would make it compatible with Convention rights: once the current requirement to do so under the HRA is repealed, there is no legislative equivalent elsewhere that will replicate this in full. An unintended consequence may be more declarations of incompatibility i.e. a declaration that a legislative provision is incompatible with protected Convention rights, as the power to creatively interpret legislation in this way will have been removed. The Government will still be bound to amend the legislation to ensure that it is compliant or could face more litigation. These proposed changes are likely to increase the number of disputes and uncertainty around interpreting and enforcing Convention rights, not reduce them.
Involvement of the European Court of Human Rights
The Courts would no longer need to follow European Court of Human Rights (ECtHR) jurisprudence: the UK Supreme Court would be the ultimate judicial authority on questions arising under domestic law in connection with Conventions rights and the Courts would be able to interpret a right in a way that diverges from a decision of the ECtHR .
Limiting rights
The Courts will also be limited in that they will not be able to interpret a right in a way that would effectively expand the scope of its protection unless there is "no reasonable doubt" that the ECtHR would do so. This adds further difficulty for the Courts as it is unclear how they would make such an assessment. It also means that there will effectively be a cap on the scope of rights, but seemingly no equivalent minimum standard applied, and a limit on how rights can be expanded to reflect changing societal values.
Requirements to act
The Bill seeks to prevent the Courts from requiring a public authority to perform a positive act, i.e to actively do something such as provide housing or care in order to avoid breaching a Convention right. Where there is a pre-existing requirement for a positive act the Bill limits the requirement to comply by making this subject to issues such as: the public interest, the ability of the public authority to perform their functions, any requirement for the police to protect individuals involved in criminal activity. It is unclear how these provisions will work in practice.
Public protection
New weight is given to protection of the public where a person who is claiming a breach of their rights has been convicted of an offence and is subject to custodial sentence. In addition, in relation to deportation of foreign individuals convicted of a criminal offence the Bill states that the right to private and family life (Article 8) cannot be relied upon by that individual unless there would be extreme harm to a member of their family which is exceptional, overwhelming, cannot be mitigated and would override the public interest in deporting them. The policy reasons behind this proposed change mean that there would be an extremely high bar which would limit the number of individuals able to rely on their Convention rights as might otherwise be the case now.
Permission
The Bill proposes additional procedural hurdles for those seeking to enforce Convention rights, including a 'permission' stage. In most cases this requires a claimant to show they are or would be the victim of the proposed act, and that they have suffered or will suffer a significant disadvantage as a result. There are concerns that this will give rise to a two-tier approach to protection of Convention rights, creating an 'acceptable' class of contraventions because the proposed threshold for permission has not been reached, leaving individuals without recourse through the domestic courts.
Remedies
When considering the issue of whether damages should be awarded, the Court will have the ability to limit (or restrict in their entirety) the recovery of damages depending on their view of a claimant's historic conduct.
Does the Bill propose to strengthen any Convention rights?
The Bill explicitly includes a provision on freedom of speech and provides for "great weight" to be given to the importance of protecting this right. Although there are a set of limitations to this, including in criminal proceedings, on the question of whether a criminal offence is compatible with Convention rights, in certain breach of confidence claims, when a person can enter / remain in the UK and national security cases. The exceptions largely seem to relate to cases that could be brought against the Government. That said, the proposed provision on freedom of expression mirrors much of what is in the HRA already: as a result it is unclear what effect this apparent buttressing of the rights to freedom expression could mean in practical terms.
The Bill also specifically provides for a right to a jury trial as a way to secure the right to a fair trial (Article 6 of the ECHR). At present the presumption is that a jury trial is Article 6 compliant as per ECtHR case law, so question whether the provision adds much at all and may be, as noted by the Joint Committee on Human Rights when considering such a provision, a symbolic gesture.
What are the next steps?
The Bill will no doubt be subject to considerable resistance as it seeks to progress through both Houses and is currently being debated at a second reading in the Commons. We expect to see questions around why the Bill is drafted to depart in a number of ways from the UK's treaty obligations, whilst representing that they continue to be the basis of our current framework.
Given the scope of the proposed changes, the likely political opposition and the difficulties with some of the current drafting, there will likely be challenges to all the key points noted above in some way or another. In terms of the move away from ECtHR jurisprudence, as set out in the report of the IHRAR, judicial dialogue between the UK Courts and the European Court of Human Rights has developed organically and is intended to be interactive and dynamic. The report stated that this works to the benefit of both Courts. There will certainly be concerns around driving through this with a new approach.
As we have seen from the recent challenge to deportations to Rwanda, the ECtHR has been effective in protecting, at least on an interim basis Convention rights. The Government has though included provision that the Courts must ignore any interim measure from the ECtHR, when determining rights and obligations under domestic law or when granting relief. There are numerous practical implications which remain unclear including how the Bill as drafted would impact on the Good Friday Agreement (which requires that Convention rights are given direct effect in Northern Ireland), or how it would practically affect extra-territorial rights in the context of overseas military operations.
It may be that the increase in litigation we would see should the Bill be enacted as drafted will have an impact on public opinion and additionally lead to a strained relationship between the UK Courts and the ECtHR, as well as the UK and the Council of Europe more broadly. We will be watching the progression of the Bill closely. If you have any queries about how the Bill or the issues discussed above could affect you, please contact us.
