Why a new Bill of Rights?

The Bill of Rights Bill, UK in a changing Europe?

The Bill of Rights Bill, published on June 22, 2022, would repeal and replace the Human Rights Act 1998. The Government’s Bill of Rights seeks to link back to older pieces of legislation by listing ECHR rights that are given effect in UK law.

The Conservative Party committed itself to introducing a Bill of Rights in its 2010 manifesto, and repeated this intention in 2015. It said it would not repeal or replace the Human Rights Act while the Brexit process was underway.

The Government published an Independent Human Rights Act Review in December 2021, which recommended some reforms to the Act. In June 2022, it published a consultation paper on Human Rights Act Reform, which was premised on the decision to replace the Act with a Bill of Rights.

The Human Rights Act 1998 creates a legal obligation for public authorities to protect rights in all their decisions and actions. The HRA was designed to strike a balance between protection for human rights and the UK’s tradition of parliamentary supremacy.

No, the Bill of Rights does not give effect to the right to trial by jury. However, it does recognise that this is a fundamental component of fair trials in the UK.

The Bill provides that courts must give “great weight” to “freedom of speech”, but there are certain exemptions. Higher courts can still issue a declaration of incompatibility if they find a law contravenes a Convention right, and this will trigger powers enabling ministers to correct the law.

The Bill of Rights Bill and the Human Rights Act are similar in that public authorities must comply with the ECHR. 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 and require judges to defer to the government.

The Bill of Rights aims at decoupling the UK’s domestic human rights regime from the Strasbourg system, and will likely create extra litigation until case law is settled.

The Bill removes the section of the HRA that allows courts to interpret laws in a way that is compatible with the ECHR.

The Government says that abolishing the duty on courts to interpret domestic legislation compatibly with human rights will increase democratic oversight, but the JCHR and the Justice Committee are not convinced that this change is necessary.

The Bill of Rights would remove the requirement for UK courts to take into account ECtHR judgments in cases where human rights are at stake.

The Bill of Rights adds that domestic courts must have particular regard to the text of the Convention right and may have recourse to the “preparatory work of the Convention”. This makes it more likely that the case law of UK courts and the ECtHR will diverge.

The Bill of Rights would prevent UK judges from interpreting Convention rights in ways that create positive obligations on public authorities. This would reduce burdens on public authorities.

The Bill of Rights precludes courts from applying positive obligations to public bodies, and could lead to legal uncertainty and divergence from the ECtHR’s case law.

The Bill limits the right to family life of foreign criminals facing deportation. Courts will also be required to interpret the Convention narrowly in cases brought by prisoners.

The Bill excludes the possibility of bringing domestic judicial proceedings for the conduct of UK armed forces in overseas military operations. This would effectively give the armed forces a form of domestic judicial immunity.

Dominic Raab introduced a bill that would weaken human rights protection in the UK.

The removal of some protective mechanisms under the Bill could affect wider groups of the population, and the Law Society of England and Wales has called the Bill a “lurch backwards for British justice”.

When a state ratifies the ECHR, it assumes certain obligations, including the obligation to secure to everyone in their jurisdiction the rights and freedoms in the Convention.

The Government has clarified that the UK will remain a party to the ECHR, meaning that individuals can still challenge the UK at the ECtHR.

The Justice Secretary’s one sentence memorandum attached to the Bill of Rights Bill states that the Bill is compatible with the Convention rights, but this is doubtful because the Bill instructs courts not to have regard to interim measures.

The HRA has led to fewer cases going to the European Court of Human Rights, because UK courts and other public authorities consider human rights more explicitly and intensively.

Human rights are entrenched in the devolution settlements of Scotland, Wales and Northern Ireland, but not at the UK level.

The Scottish and Welsh governments opposed the repeal of the Human Rights Act and its replacement by a new Bill of Rights, and the Lords European Union Committee concluded that the reforms would cause constitutional disruption.

Article 763 of the EU-UK Trade and Cooperation Agreement commits the UK and EU to respect human rights and the rule of law. If either party fails to fulfil any of these obligations, the other party may terminate the agreement.

The part of the TCA relating to criminal law enforcement specifically commits both parties to respecting the ECHR, and the EU could choose to immediately terminate this part of the agreement if the UK denounced the ECHR.

The next stage for the Bill is to be scrutinised and debated in Parliament. The Bill is not likely to be debated before the House of Commons returns in September.

The House of Lords may feel free to make major amendments to the Bill of Rights Bill, since the Conservatives’ 2019 manifesto committed only to updating the Human Rights Act.