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11 Jul 2022

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What is the Bill of Rights Bill?

On 22 June 2022, the Secretary of State for Justice, Dominic Raab, published the Bill of Rights Bill. This would repeal and replace the Human Rights Act (HRA) 1998, which gives effect in UK law to the rights and freedoms in the European Convention on Human Rights (ECHR).

Once enacted, it will be referred to as the Bill of Rights 2022.

By calling it the ‘Bill of Rights’, the Government seeks to link back to older pieces of legislation in the UK, including the Scottish Claim of Rights 1689 and the English Bill of Rights 1689. Unlike these documents, however, the Bill of Rights does not create new rights but lists (in Schedule 1) the ECHR rights to which it gives effect in UK law. These are the same Convention rights to which the HRA gives effect.

Why has the Government introduced the Bill of Rights Bill?

The Conservative Party first committed to introducing a Bill of Rights to replace the Human Rights Act (HRA) 1998 in its 2010 manifesto and repeated this intention in 2015. In 2017, it said it would not repeal or replace the HRA while the Brexit process was underway. Its 2019 manifesto committed only to “update the Human Rights Act”.

“By calling it the ‘Bill of Rights’, the Government seeks to link back to older pieces of legislation in the UK, including the Scottish Claim of Rights 1689 and the English Bill of Rights 1689.”

The Bill’s stated purpose is to “[clarify and re-balance] the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament” and to give primacy to decision-making by Parliament, rather than any court, in instances where competing rights and interests are at stake (clause 1(2)).

Did the Government consult on the Bill?

In December 2021, the Government published the Independent Human Rights Act Review (IHRAR). This resulted from a ten-month inquiry into the operation of the HRA by a panel of experts. The IHRAR was not asked to consider replacing the HRA with a Bill of Rights, but noted that there was “an overwhelming body of support for retaining the HRA”. It recommended some reforms to the Act.

In the same month, the Government published a consultation paper, Human Rights Act Reform: A Modern Bill of Rights, which diverged from the recommendations of the IHRAR, since it was premised on the decision to replace the HRA with a Bill of Rights. In June 2022, on the same day that the Bill of Rights Bill was introduced, the Government released its response to the consultation.

As the parliamentary Joint Committee on Human Rights (JCHR) notes, on most of the questions posed, the majority of respondents were in favour of keeping the Human Rights Act as it is and not introducing a new Bill of Rights.

How does human rights protection currently work in the UK?

The HRA creates a legal obligation for all public authorities – including government departments, courts, the police, hospitals and local councils – to protect rights in all their decisions and actions. It is unlawful for a public body to act in a way that is incompatible with a Convention right, unless an Act of Parliament requires it.

The HRA was designed to strike a balance between protection for human rights and the UK’s tradition of parliamentary supremacy. For example, no court (either in the UK or in Strasbourg) can strike down an Act of Parliament. A UK court can only declare an Act of Parliament to be ‘incompatible’ with a right, signalling to Parliament that it should consider a change to the law.

Does the Bill of Rights introduce any new rights?

No. The Bill gives effect to the same catalogue of Convention rights as the HRA (clause 2 and schedule 1).

Unlike the HRA, the Bill recognises that trial by jury is a fundamental component of fair trials in the UK (clause 9). However, this is not a new right. The JCHR says that the provision “appears to be a symbolic gesture to distinguish the Bill of Rights from the Convention” (which does not refer to the right to trial by jury).

“The Bill also provides that courts must give ‘great weight’ to the importance of ‘freedom of speech’ (clause 4), which is protected under the ECHR.”

The Bill also provides that courts must give “great weight” to the importance of “freedom of speech” (clause 4), which is protected under the ECHR. However, there are certain exemptions: for example, individuals cannot rely on this provision in criminal proceedings, or matters relating to immigration, citizenship or national security.

Does the Bill of Rights preserve any aspects of the Human Rights Act?

Yes. Higher courts (such as, in England and Wales, the Supreme Court, the Court of Appeal and the High Court) will still be able to issue a “declaration of incompatibility” if they find that a law contravenes a Convention right (clause 10). As under the HRA, any such declaration will not affect the validity or enforceability of the law, but will trigger powers enabling ministers – and ultimately Parliament itself – to take action to correct the legislation which is not compatible with the ECHR (clause 26).

Another similarity between the Bill of Rights Bill and the HRA is that public authorities will still have a duty to act compatibly with the ECHR unless primary legislation (i.e. an Act of Parliament) requires them to do otherwise (clause 12). However, as noted below, other provisions in the Bill seek to reduce the obligations on public authorities to take proactive steps to safeguard rights and so this apparent continuity between the HRA and the Bill of Rights may be superficial.

What would the Bill of Rights change?

The Bill would change significantly the means by which human rights are protected and enforced in the UK. It would make it harder for people to bring human rights claims by introducing a “permission stage”, requiring them to prove that they have suffered “significant disadvantage” (clause 15). The Government says this is necessary to weed out “trivial cases”.

The Bill would require judges to defer to the government on a wide range of areas, including deportation decisions (clause 8), and whether or not public authorities are required to take proactive steps to protect people’s rights (clause 5). Courts’ powers to interpret laws to make them compatible with Convention rights would be removed.

“Courts’ powers to interpret laws to make them compatible with Convention rights would be removed.”

As Mark Elliott observes, the Bill aims at “substantially decoupling the UK’s domestic human rights regime from the Strasbourg system”. For example, it states explicitly that UK courts can depart from the case law of the European Court of Human Rights (ECtHR).

The Government’s own impact assessment of the Bill acknowledges that differences between the Bill of Rights and the HRA “are expected to create legal uncertainty … and are likely to create extra litigation until case law is settled”.

How would the Bill of Rights change how the courts interpret the law?

A significant change is that the Bill removes – and does not replace – the section of the HRA that empowers and requires courts to interpret laws compatibly with the ECHR “so far as it is possible to do so”.

Under the HRA, courts have to interpret Acts of Parliament so that the rights, duties and powers that they establish can only be exercised in ways that are compatible with – and do not lead to breaches of – Convention rights. Courts cannot stretch this interpretive power so far as to change the law beyond what Parliament intended. If a law cannot be read and given effect in a way that is compatible with the ECHR, all a court can do is issue a declaration of incompatibility, signalling to ministers and Parliament that it needs to be changed.

The Government says that abolishing the duty on courts to interpret domestic legislation compatibly with human rights will “increase democratic oversight” by “[ensuring] that UK courts can no longer alter legislation contrary to its ordinary meaning”. The JCHR and the Justice Committee, however, are “not convinced that the courts’ existing approach has been shown to be sufficiently problematic” to justify significant changes, let alone repeal.

The Government’s impact assessment acknowledges that this change would have a two-fold effect: first, it is likely to lead to judges issuing more declarations of incompatibility, because they will have little or no scope to interpret laws so as to avoid the existence of incompatibilities in the first place. Secondly, for the same reason, it could lead to more cases being taken to the ECtHR.

How would the Bill of Rights change the relationship between UK courts and the European Court of Human Rights?

The Bill of Rights removes the requirement on courts under the HRA to “take into account” the judgments of the ECtHR in cases where human rights are at stake. Instead, the Bill states that the UK Supreme Court is the “ultimate judicial authority on questions arising under domestic law in connection with the Convention rights” (clause 3(1)).

The Bill adds that domestic courts must, among other things, have “particular regard to the text of the Convention right” and may have recourse to the “preparatory work of the Convention”, i.e. the extensive documents that set out the original intentions of the drafters of the Convention in 1950 (clause 3(2)). While the HRA does not preclude domestic courts from diverging from the case law of the ECtHR (which they sometimes do), the Bill explicitly states that they may do so (clause 3(3)).

These changes would discourage UK courts from interpreting Convention rights expansively or dynamically (i.e. in line with modern day attitudes and developments), even if that means departing from how the ECtHR interprets the same rights. The Bill of Rights therefore makes it more likely that the case law of UK courts and the ECtHR will diverge, and that applicants who cannot enforce their rights domestically will, in turn, take their cases to the ECtHR.

What would the Bill of Rights mean for the duty on public authorities to proactively protect rights?

The case law of both the ECtHR and UK courts recognises that public authorities may breach rights either by their actions (doing something, such as taking a child into care) or omissions (failure to do something, such as not providing housing).

As a result, they have both duties of restraint (for example, not to inflict inhuman treatment on someone) and duties to take proactive steps.

For example, these could be steps to protect a person’s life or safeguard them from ill-treatment, or to investigate failures by public authorities to protect fundamental rights. These are known as “positive obligations”.

The Bill of Rights Bill would prevent UK judges from interpreting Convention rights in ways that create positive obligations on public authorities (clause 5). The Government says this is to reduce burdens on public authorities.

Many landmark cases under the HRA have relied on positive obligations: for example, the Act allowed bereaved families and survivors of the Hillsborough disaster to expose the negligence of state officials, using the positive obligation to investigate alleged breaches of the right to life. Likewise, the HRA allowed victims of the ‘black cab rapist’ John Worboys to hold police responsible after the Supreme Court ruled that the force had failed to carry out an effective investigation into his attacks.

“The Bill expressly reduces the rights of particular categories of people.”

Not only does the Bill of Rights preclude new interpretations of rights that impose positive obligations on public bodies, it also discourages courts from applying positive obligations that have already been identified in previous cases. This could lead to legal uncertainty, and to divergence from the case law of the ECtHR, since positive obligations are an important principle applied by the Court to ensure practical and effective protection of rights, particularly for people whose rights are most vulnerable to abuse (such as children, victims of sexual violence and people seeking asylum).

How will the Bill of Rights impact upon particular categories of people?

The Bill expressly reduces the rights of particular categories of people. For instance, “foreign criminals” facing deportation will only be able to rely on their right to family life if their deportation would cause “extreme” harm to a child or dependent; that is, harm that is “exceptional”, “overwhelming” and “irreversible” (clause 8). The Government says it wants to restrict the circumstances in which the right to family life would “trump public safety”.

Courts will also be required to interpret the Convention especially narrowly in cases brought by prisoners (clause 6).

The Bill excludes the possibility of bringing domestic judicial proceedings for the conduct of UK armed forces in overseas military operations (clause 14). As Marko Milanovic argues, this would effectively give the armed forces a form of domestic judicial immunity (i.e. protection from being sued). It would prevent human rights claims not only by people who believe their rights have been violated by the armed forces, for example in Iraq, but also by soldiers who have been exposed to harm due to the lack of adequate protective equipment.

Would the Bill of Rights strengthen or weaken human rights protection?

Introducing the Bill, Dominic Raab told Parliament it was “rights enhancing”. However, as some commentators note, the Bill would weaken human rights protection in the UK in several ways. This is particularly so for prisoners, foreign nationals facing deportation and their families, and potential victims of abuse by the UK armed forces.

Further, the removal of some of the protective mechanisms under the Bill – such as the intention to eradicate both new and existing positive obligations – could affect wider groups of the population. For example, removing the positive obligation to investigate alleged violations of the right to life would narrow the potential scope of the public inquiry into the Government’s handling of the Covid-19 pandemic. The JCHR says this provision “would be an undesirable regression in rights protection”.

The Law Society of England and Wales has called the Bill a “lurch backwards for British justice”. It criticises the introduction of the permission stage (requiring those bringing human rights cases to prove that they have “significant disadvantage”), arguing that this provision “will create an acceptable class of human rights abuses in the United Kingdom”.

Does the Bill of Rights change the UK’s obligations under the ECHR?

No. When a state becomes a “party” to the ECHR, it assumes certain obligations. All 46 states that have ratified the Convention are subject to the same obligations. These include the obligation to secure to everyone in their jurisdiction the rights and freedoms in the Convention, and to “abide by” final judgments of the ECtHR in any case against them, i.e. to take steps to remedy violations identified by the Court and prevent them from happening in the future.

“As long as the UK remains a party to the ECHR, these obligations cannot be diluted or overridden by any change in UK law.”

The Government has clarified that the UK will remain a party to the ECHR. This means that, whatever law is passed at domestic level, the UK will remain bound by these obligations under the Convention and individuals will still be able to challenge the UK at the ECtHR. As long as the UK remains a party to the ECHR, these obligations cannot be diluted or overridden by any change in UK law.

Is the Bill of Rights compatible with the UK’s obligations under the ECHR?

The one sentence memorandum attached to the Bill of Rights Bill states that the Justice Secretary, Dominic Raab, considers it to be compatible with the Convention rights.  However, this is doubtful in respect of all the Bill’s provisions.

For example, the Bill instructs courts not to have regard to any “interim measure” issued by the ECtHR. Interim measures are urgent orders that the ECtHR exceptionally issues where there is an imminent risk of irreparable harm to a person, without prejudging the final outcome of their case.

On 14 June 2022, the Court issued an interim measure to prevent the removal of an applicant to Rwanda as part of the UK-Rwanda asylum agreement until the legality of the scheme has been established. Interim measures are binding, i.e. states must implement them. By instructing courts to disregard interim measures, the Bill of Rights Bill directly contravenes the UK’s obligations under the ECHR.

Addressing the provision stipulating that future ECtHR case law clarifying or developing the extent of positive obligations is not applicable in the UK, the JCHR says, “We cannot see how this provision is compatible with the UK’s international obligations”.

Would the Bill of Rights lead to more or fewer cases going to the European Court of Human Rights?

One effect of the HRA has been to reduce the number of ECtHR judgments finding violations against the UK, as a result of the fact that UK courts and other public authorities consider human rights more explicitly and intensively than they did before the Act. In the past five years, the Court has on average issued only three judgments a year finding violations against the UK (by comparison, France had an average of nine judgments per year finding violations, Italy had 20 and Turkey had 150).

If the Bill of Rights is enacted, people in the UK will face greater obstacles to enforcing their rights in the domestic courts, and are therefore more likely to seek recourse to the ECtHR – as the government’s impact assessment acknowledges.

What are the Bill’s implications for the devolved nations?

Human rights – and the HRA itself – are entrenched in the devolution settlements of Scotland, Wales and Northern Ireland in a way that they are not at the UK level; for instance, acts of the devolved legislatures can be quashed by courts for non-compliance with the ECHR, unlike Acts passed at Westminster.

“If the Bill of Rights is enacted, people in the UK will face greater obstacles to enforcing their rights in the domestic courts.”

In their responses to the consultation on Human Rights Act Reform: A Modern Bill of Rights, the Scottish and Welsh governments opposed the repeal of the HRA and its replacement by a new Bill of Rights (the Northern Ireland executive did not publish a submission).

Dominic Raab told Parliament that the government wants “to work with all the devolved Administrations on these essential reforms” and “will be seeking legislative consent motions”. The JCHR says that the government “should not proceed without the consent of the devolved legislatures”.

An inquiry by the Lords European Union Committee concluded that devolved assemblies were unlikely, if asked, to consent to the repeal of the HRA and its replacement by a Bill of Rights, and that, “If for no other reason, the possible constitutional disruption involving the devolved administrations should weigh against proceeding with this reform.”

What are the Bill’s implications for the EU-UK Trade and Cooperation Agreement?

The EU-UK Trade and Cooperation Agreement (TCA) commits the UK and EU to respecting human rights and the rule of law as “shared principles” (Article 763). This includes respect for the international human rights treaties to which they are parties. In the event of “a serious and substantial failure” by either party to fulfil any of the obligations described as “essential elements” of the TCA, the other party may decide to terminate or suspend the agreement in whole or part (Article 772).

The shared principles set out in Article 763 are among these essential elements. The “serious and substantial failure” is described as one of an “exceptional sort that threatens peace and security or that has international repercussions”. It is unlikely that the Bill of Rights Bill would be seen as triggering this provision.

The part of the TCA relating to criminal law enforcement specifically commits both parties to respecting the ECHR and to “giving effect to the rights and freedoms in that Convention domestically” (Article 524). If the UK was to “denounce” the ECHR (i.e. declare its intention to leave it), the EU could choose to immediately terminate this part of the agreement (Article 692). In the event of “serious and systemic deficiencies … as regards the protection of fundamental rights or the principles of the rule of law”, the EU could decide to suspend this part of the agreement (Article 693).

As Steve Peers ventures, there is no explicit reference to what would happen if the UK was deemed to fall short of its human rights commitments by amending or repealing domestic law giving effect to the ECHR, although it is possible that such a development could trigger concerns about “serious and systemic deficiencies”.

What happens next?

The next stage is for the Bill to be scrutinised and debated in Parliament. All the main opposition parties oppose the Bill. The Bill is not scheduled for its second reading (i.e. its next parliamentary stage, when MPs can seek to amend it) before the summer recess. This means it is not likely to be debated before the House of Commons returns in September.

The Chairs of several parliamentary committees lamented the fact that such a significant constitutional change was not submitted for pre-legislative scrutiny, to permit more careful and robust scrutiny in Parliament.

There is a political understanding, known as the Salisbury convention, that the House of Lords will not block bills that implement manifesto commitments. However, the House of Lords may consider that this does not apply to the Bill of Rights Bill since the Conservatives’ 2019 manifesto committed only to updating, not repealing and replacing, the Human Rights Act. This means that the Lords may feel free to apply rigorous scrutiny and make major amendments to the Bill.

By Dr Alice Donald, Associate Professor, School of Law, Middlesex University.

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