27 June 2022 Jonathan Jones  -  Tom Cassels  -  Alexander Fawke  -  Emma Kate Cooney Dispute Resolution - ESG - Risk and governance

The Bill of Rights Bill: an overview

The government published its Bill of Rights Bill on 22 June. The Bill repeals and replaces the Human Rights Act 1998 (HRA), with substantial changes [1].

The UK remains party to the European Convention on Human Rights (ECHR) and the rights covered by the Bill are the same “Convention rights” as those in the HRA (clause 2 of, and Schedule 1 to, the Bill). There remains a duty on public authorities to act consistently with the Convention rights (clause 12) and those rights will continue to be enforceable in the UK courts (clause 13).

The Bill confers no new rights. Clause 4 requires the courts to give “great weight” to the existing right to freedom of speech (Article 10 of the ECHR), although this does not apply to the interpretation of legislation creating a criminal offence; to certain breach of confidence cases; to the determination of any question about a person’s citizenship, or right to enter or remain in the UK; or to any national security issue. Clause 9 recognises the “right” to jury trial, but only in so far as the law already provides for it, so adds nothing new.

Although the set of rights therefore remains the same, the Bill makes major changes to the way in which those rights are to be applied, interpreted and enforced. In particular:

  • The Bill includes no equivalent of section 3 of the HRA, which requires the courts to interpret domestic legislation compatible with the Convention rights, so far as possible. This may lead the courts to make more findings that legislation is incompatible with the Convention. It will then be for the government and Parliament to decide whether to change the law in order to remove the incompatibility.
  • There is no equivalent of section 2 of the HRA, which requires the UK courts to take into account jurisprudence of the European Court of Human Rights (ECtHR) on the interpretation of the Convention rights. Instead clause 3 of the Bill provides that a court may not adopt an interpretation of a right that “expands the protection conferred by the right” unless the court has no reasonable doubt that the ECtHR would adopt the same interpretation; and may adopt an interpretation of the right that diverges from ECtHR jurisprudence.
  • Clause 5 of the Bill prevents UK courts from interpreting Convention rights in a way which imposes new positive obligations on public authorities, and to take a restrictive approach to the application of any existing positive obligations arising under the ECHR.
  • Clause 7 requires the UK courts to treat Parliament as having decided that the relevant Act strikes an appropriate balance between competing factors, and to give the “greatest possible weight” to the principle that decisions about how such a balance should be struck are a matter for Parliament. This appears to be an attempt to dissuade the courts from finding that legislation represents a disproportionate interference with Convention rights.
  • Clause 8 requires the courts to take a highly restrictive interpretation of Article 8 of the ECHR (right to respect for private and family life) in deportation cases.  There is to be no finding of incompatibility unless the court finds that there would be “manifest harm” to the individual which is so “extreme” as to override the “otherwise paramount public interest” in their removal from the UK; and for these purposes harm is “extreme” only if it is “exceptional and overwhelming” and irreversible or incapable of being mitigated.
  • Clause 14 excludes human rights claims in relation to overseas military operations.
  • Clause 15 introduces a new requirement to obtain permission to bring a human rights claim. Permission is to be granted only if the claimant is a “victim” of the relevant act, and has suffered (or would suffer) a “significant disadvantage” from it – or (in the absence of “significant disadvantage”) the court considers it appropriate to grant permission “for reasons of wholly exceptional public interest”.
  • Clause 24 provides that no account is to be taken in domestic law of interim measures issued by the ECtHR (no doubt a response to the interim measures recently granted in relation to the government’s policy of removals to Rwanda).

Overall, these changes are likely to make it more difficult for claimants to bring human rights claims (e.g. because of the requirement for permission with its new, higher threshold); and probably mean more claims will fail, because the courts are likely to take a more restrictive interpretation of particular rights, and less likely to find that legislation violates the Convention (clauses 3, 5, 7, 8, 14). In turn this may lead to more claimants being forced to take their cases to the ECtHR – with all the cost and inconvenience that will entail (if they can afford it). This potentially sets up conflict between the UK and ECHR: if such claims succeed in the ECtHR the government will either have to comply with its rulings (thus presumably undermining the whole point of the Bill), or defy such rulings (thus putting the UK in breach of its international law obligations under the Convention).

Finally, whatever its policy merits, the Bill is a major and complex piece of legislation. Many questions are bound to arise over its interpretation (see for example the complex drafting of clauses 3, 5 and 7; and the difficult questions which may arise over whether previous interpretations of legislation made pursuant to section 3 of the HRA survive repeal of that section, or are preserved by regulations made under clause 40 of the Bill). This is a recipe for legal uncertainty and fresh litigation.

 

Footnote:

[1] Unusually, the Bill when enacted will be called simply “the Bill of Rights 2022” (not “Act”) – clause 41.