105: Public Law: The Bill of Rights Bill – What next for human rights in the UK?

The Bill of Rights Bill was introduced into the House of Commons on 22 June. Second reading was scheduled for early September but has now been delayed with no future date provided.

Following Liz Truss’s appointment as the new Prime Minister, there were press reports that the Bill of Rights Bill had been shelved, yet with no confirmatory ministerial statement this cannot be taken for granted. But the Bill of Rights Bill is undoubtedly being re-examined and, even if it were scrapped, the government has made it clear their ‘principles and objectives’ remain the same.

So what might any revised Bill of Rights Bill look like?

1. Going beyond the Manifesto pledge?

The 2019 Conservative Manifesto promised to ‘update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government’. The Bill of Rights Bill proposed reforming the law relating to human rights by ‘repealing and replacing the Human Rights Act 1998 (HRA)’, which most commentators agreed went beyond the promised ‘update’ to the HRA. Any Bill that surpasses manifesto pledges risks scrutiny in the Lords. The new government may be concerned that the Bill of Rights Bill, as previously proposed, would not make it through the Lords, or would be severely diluted, and is taking this opportunity to revise it.

2. The UK to remain a signatory to the European Convention of Human Rights (ECHR)

Under the Bill of Rights Bill in its current form, the UK would remain a ‘High Contracting Party’ to the ECHR and legally bound by it, and the UK would still be required to protect Convention rights and ‘to abide by the final judgment of the [European Court of Human Rights (ECtHR)] in any case to which they are parties’. We don’t foresee any change in this respect, not least because the UK leaving the ECHR would be a breach of The Good Friday Agreement, the basis of peace and devolved government in Northern Ireland. A more difficult question is whether the Bill of Rights Bill will continue to restrict the UK courts’ ability to uphold Convention rights, particularly when infringed by UK legislation or executive action.

3. End of reading UK legislation in line with the ECHR?

At present, the HRA s.3 requires UK courts to read UK legislation so as to be compatible with Convention rights and ECtHR decisions. The Bill of Rights Bill, as proposed, would remove this broad obligation, because, the government claims, it currently allows the courts to stretch the plain or natural meaning reading of legislation, beyond that intended by Parliament, in order to give effect to Convention rights. Instead, UK courts would have to give weight to the following considerations when interpreting UK legislation in line with Convention rights:

• The Convention right in question, including the preparatory text;
• the common law development of similar rights;
• Freedom of Speech;
• public protection; and
• that in a Parliamentary democracy it is Parliament that should balance Convention rights and policy and that in passing an Act Parliament has struck that balance.

The Bill of Rights Bill therefore seeks to prescribe the courts’ interpretive tools when giving effect to Convention rights. The logical conclusion is that the Bill of Rights Bill would limit the extent to which Convention rights can be applied through UK legislation.

Crucially, by prohibiting the courts from taking ECtHR jurisprudence into account the Bill of Rights Bill asks the courts to adopt an Originalist interpretative approach. The ECHR would cease to be a ‘living instrument’ – when interpreting UK legislation the courts would be limited to the Convention documents, thereby disregarding years of human rights law which has developed incrementally.

4. Fewer Declarations of Incompatibility?

The HRA allows the courts to make declarations of incompatibility where an Act of Parliament comes into conflict with a Convention right and cannot be interpreted so as it be compatible with that right. While not affecting the validity of the offending provision, a declaration of incompatibility puts the government on notice to change it. The Bill of Rights Bill would keep this power.

Given the Bill of Rights Bill would prevent the courts from reading UK legislation in a Convention compatible manner, one might assume an increase in declarations of incompatibility would follow.

However, this may not be the case as the Bill of Rights Bill also delineates the approach UK courts should take in making declarations of incompatibility. Under the current legal framework, a court will not make a declaration if the legislation in question is proportionate in balancing Convention rights with wider socio/economic considerations. But the Bill of Rights Bill states that Parliament in passing any Act has already balanced such factors. By requiring the courts to give primacy to the assumption of due Parliamentary process, the Bill of Rights Bill is therefore making it harder for the courts to satisfy the current legal tests for making a declaration of incompatibility.

Controversial though such measures are, they appear both intrinsic to the government’s proposals and consistent with the manifesto commitment, and so it is difficult to see any change being made here.

5. Interim measures of the ECHR

The Bill of Rights Bill (clause 24) would also prevent UK courts from relying on ECtHR interim measures in determining an individual’s Convention rights or the extent of an obligation on a public authority. The government’s press release was explicit in stating that interim measures such as the one which ‘prevented the removal flight to Rwanda, are not binding on UK courts’.

The Bill of Rights Bill walks an unusual tightrope of curtailing the application of ECtHR jurisprudence yet affirming that the UK, as a state, remains bound by the ECHR.

This provision is a practical bar to speedy redress and a clear example of how the Bill of Rights Bill seeks to untangle two legal systems which have evolved together for decades. Again, a change here seems unlikely.

6. HRA caselaw ‘revived’ at the Secretary of State’s discretion

As explained above, the Bill of Rights Bill would repeal s.3 of the HRA, removing UK courts’ obligation to interpret legislation in accordance with ECHR rights.

The Bill of Rights Bill appears to have been drafted on the basis that this repeal would remove the precedent effect of case law decided under that legislative framework, and so also the rights conferred/protected by such judicial decisions. However, rather than seeking to preserve that jurisprudence ‘wholesale’, the Bill of Rights Bill (clause 40) instead grants the Secretary of State (SoS) power to revive such ‘relevant judgment’ if it appears to the SoS to have been made in reliance on s.3 HRA. The Bill of Rights Bill impact assessment states that approximately sixty ‘relevant judgments’ have been identified and it is the government’s intention to revive around forty.

It is not clear how workable this is, not least because there is significant uncertainty as to how the government have identified what constitutes a ‘relevant judgment’: judges do not typically signal when a s.3 power has been used. This uncertainty will likely result in legal challenges to clarify whether a judgment is relevant, and whether previously recognised rights are maintained. We suggest we may see some watering down of these proposals. 

7. A Constitutional shift?

The Bill of Rights Bill expressly states at clause 1 that the UK Supreme Court (UKSC) is the ‘ultimate judicial authority on questions arising under domestic law in connection with the Convention rights’. While this would seem to make the interpretation of the ECHR more UK-centric, it is questionable whether, in fact, the Bill gives any new powers to the UKSC at all.

By curtailing the interpretative tools at the UKSC’s disposal, the Bill of Rights Bill represents a shift in the balance of our constitutional powers. In directing the judiciary to give weight to the will of Parliament above all other considerations, the government maintains that the Bill of Rights Bill re-asserts the sovereignty of Parliament with regard to questions of human rights.

But of course clause 40 Bill of Rights Bill, which would allow the SoS to decide which judgments to revive, allows a minister to shape the human rights legal landscape unilaterally by ‘cherry-picking’ which current HRA cases should be revived. This points to the Bill of Rights Bill firmly shifting human rights into the remit of the executive, the very body whose decisions tend to come under the most scrutiny.

8. Positive obligations

The ECHR requires that contracting states take certain positive steps to protect human rights, for example Article 2 provides an individual’s right to life ‘be protected by law’. The majority of positive obligations, however, are derived from ECtHR caselaw. The ECtHR has resisted taking a uniform approach to positive obligations, hence ECtHR decisions have played a continual role in developing such rights.

Clause 5 Bill of Rights Bill would, if enacted, prevent the courts from adopting any interpretation that would impose a new positive obligation on a public body. Before making a decision that would require a public body to comply with a pre-existing positive obligation the courts must give weight to a new set of considerations, all of which it could be said are designed to give a wider margin of discretion to decision makers acting under primary and secondary legislation. This looks likely to stay.

9. The Permission Stage

The Bill of Rights Bill introduces a new permission stage for claimants before they can bring proceedings. A court would only grant permission to proceed where a claimant can show they are both a victim of the act in question and that they will suffer a significant disadvantage.

This permission stage has been heralded as a means of preventing ‘trivial legal claims wasting taxpayers’ money’. But it will undoubtedly lengthen the human rights claims process, adding a further costs barrier (it is unclear whether legal aid will be available to potential claimants) and, arguably, it will allow certain breaches of human rights to go unchallenged. The permission test replicates the ECtHR’s own test for admissibility and will preclude potential claimants from being able to rely on a well-established body of domestic caselaw on standing. This may prevent campaign groups, who are not directly affected by or victims of the alleged breach, from bringing legal action. Again, although controversial, it seems likely to stay.

10. Potential clashes

A claimant can only bring a claim to the ECtHR when they have exhausted domestic avenues. As the Bill of Rights Bill will limit both the courts’ ability to interpret domestic law in a Convention compatible way and the circumstances in which declarations of incompatibility can be made, an increase in the number of direct claims against the UK would seem likely. While this route to human rights redress will remain, the requirement to bring a claim through the Strasbourg court will be a practical bar to justice and too costly for many potential claimants. An increase in direct claims will inevitably bring the government into conflict with Strasbourg (at least optically) and it remains to be seen whether (and how) the government will react to adverse ECtHR judgments.

It is likely the Bill of Rights Bill would also lead to domestic conflict. The clause 40 powers (if they remain unaltered) challenge the principles of the rule of law and the balance of powers – when this power is used we should expect legal challenges to follow, most likely by way of judicial review. In any event the Bill of Rights Bill has been criticised by NGOs, public interest groups and the wider legal profession (80-90% of those consulted by the Ministry of Justice opposed the Bill of Rights Bill in its current form). The Law Society has been campaigning against the introduction of the Bill of Rights Bill, which it believes will damage the rule of law and prevent access to justice. The Law Society has also hosted a summit of City stakeholders which found that the Bill of Rights Bill could have the ‘unintended consequences’ of damaging the UK’s attractiveness as a legal hub, which would result in a flight of commercial and legal work to other jurisdictions.

That the Bill of Rights Bill in its current form would have a rocky road through Parliament goes a long way to explain why it may inevitably be shelved as too controversial. However, the Bill of Rights Bill remains a useful document for understanding the direction of travel for human rights in the UK, the legislative ambitions of a government which is still comprised of numerous outspoken critics of the HRA and where the battlegrounds lie. Should the government pursue a ‘new legislative agenda’ in place of the Bill of Rights Bill we may see a more nuanced approach with a greater emphasis on secondary legislation originating from the Home Office as opposed to the Ministry of Justice.