Government presses ahead with new Bill of Rights

The post below was first published on our Public Law blog.

On 22 June, the Government laid its new Bill of Rights Bill before Parliament. The Bill has been anticipated since the Government invited responses to a consultation on the replacement of the Human Rights Act 1998 ("HRA") earlier this year. A summary of the proposals can be found here and an exposition of our views on the proposals here. In this blog post, we highlight some of the key changes that the Government has decided to include in the new Bill and provide some brief commentary on these changes.

Broadly, the Bill keeps fairly closely to the proposals laid out in the original consultation document, although there are some notable changes and additions. The new Bill of Rights is introduced in clause 1 as clarifying and re-balancing the relationship between UK courts, the European Court of Human Rights ("ECtHR") and Parliament. The starting point is that the HRA, under Schedule 5 paragraph 2 of the Bill, will be repealed in its entirety although the Government still intends for the UK to remain a party to the European Convention on Human Rights. However, our view is that the new Bill will likely bring UK human rights law out of step with that of the ECtHR. We therefore consider that this Bill, in its current form, would constitute a significant change to the UK's human rights regime that will make it harder for claimants to enforce their rights domestically. In that context it is interesting to note that the relevant minister has said that in his view the provisions of the Bill are compatible with the rights in the European Convention on Human Rights.  We would expect vigorous debate as to whether that will be so.

The following are some of the most notable changes in the new Bill of Rights Bill:

- Section 2 of the HRA. – the place of Strasbourg caselaw. The new Bill removes the obligation in section 2 of the HRA that currently requires courts to 'take into account' Strasbourg jurisprudence. Instead clause 3(3)(b) provides explicitly that domestic courts may diverge from Strasbourg jurisprudence. In clause 3(1) of the Bill, the position of the Supreme Court as the ultimate judicial arbiter is emphasised. Moreover, a court may not adopt an interpretation that expands the protection conferred by a Convention right unless it has no reasonable doubt that the ECtHR would adopt the same interpretation (s3(3)(a)). These provisions accord with the Government's aim, stated in the consultation paper, of allowing UK human rights law to develop with reference to a wider range of jurisprudential sources. We have previously expressed our concern about this change precisely because it will likely bring the UK out of alignment with Strasbourg jurisprudence which will lead to uncertainty in the law.

- Section 3 of the HRA.- interpreting legislation  This section currently requires courts to interpret legislation in a way which is compatible with Convention rights 'so far as it is possible to do so'. The consultation document suggested that this provision might be repealed or replaced by language that is less strict. The new Bill removes this obligation in its entirety (see clause 1(2)(b)). In its place, under clause 3(2), a domestic court deciding a question relating to a Convention right must have 'particular regard to the text of the Convention right' as well as the 'preparatory work' of the Convention. Additionally, the court may have regard to the common law in interpreting the right. Depending on how differently the judges approach the new legislation as compared with the HRA, this change would have the potential to restrict the ability of courts to interpret legislation in a Convention-compatible way compared with the current law.

- Primacy of Parliament and proportionality. Clause 7 of the new Bill relates to situations where the UK court is considering compatibility with Convention rights and must consider whether an appropriate balance has been struck between any combination of the following matters: different policy aims; different Convention rights and Convention rights of different persons. Clause 7(2) provides that the Court must have regard, in determining this balance, to the fact that Parliament by passing the relevant legislation considered that the appropriate balance has been struck. Equally, the court must give the greatest possible weight to the principle that in a Parliamentary democracy the balance should be decided by Parliament. In our view UK courts already give significant weight to policy decisions made by Parliament and have repeatedly voiced their reluctance to become involved in choices between different policy aims. It is therefore not clear to us at this stage what the new provision will achieve, nor how it will in fact impact future decisions from the courts.

- Positive obligations. Strikingly, clause 5(1) prevents UK courts from adopting new interpretations of Convention rights (post-commencement interpretations) that would require public authorities to comply with a positive obligation. Although it was clear that the Government intended to limit the effect of positive obligations, the consultation paper did not put forward a definitive view on how this would be achieved. The Bill appears to advocate a departure from the current position, in respect of any rights which can only meaningfully be upheld by way of positive obligations. In relation to pre-commencement interpretations of such rights, clause 5(2) of the Bill lays out factors for the court to consider when determining whether a positive obligation should be imposed.

- Declarations of incompatibility. The Bill of Rights retains the declaration of incompatibility mechanism currently present in the HRA for incompatible primary legislation. With respect to incompatible secondary legislation, clause 10(1)(b) of the Bill provides the domestic court with an additional option: if the court does not quash or invalidate the provision (as it is currently entitled to do) the court may make a declaration of incompatibility. Whilst we are concerned about the use of the declaration of incompatibility mechanism in the case of secondary legislation, where that can be passed quickly and without adequate Parliamentary scrutiny, we wholly support the retention of the power to invalidate secondary legislation in line with RR v Secretary of State for Work and Pensions [2019] UKSC 52 and suggest that this should still be the primary remedy considered by the courts.

- Permission stage. The new Bill, in line with the HRA, states that only a 'victim' of an unlawful act can make a claim against a public authority. However, clause 15 adds a new permission stage to human rights claims which requires an individual to show that, unless the claim is wholly exceptional for public interest reasons, they have suffered a 'significant disadvantage'. Our view is that a permission stage is unnecessary and potentially harmful to deserving claimants. In particular, this change to procedure is also likely to lead to greater costs and delay in human rights litigation and many human rights cases proceed by way of judicial review where there is already a permission filter.

- Damages. Clause 18 introduces additional criteria that the court must take into account when deciding whether or not to award damages following an unlawful act, including, as envisaged by the consultation proposals, the conduct of the relevant person regardless of whether that conduct is related to the unlawful act. In addition, great weight must be given to the importance of minimising the impact any damages would have on the ability of public authorities to perform their functions. Clearly this clause is aimed at encouraging courts to further limit the already generally modest awards of damages for actions that are incompatible with Convention rights.

- Other changes.

• • The right to freedom of speech appears to be singled out as particularly important (clause 4);
  • Despite not being part of the original proposals, but perhaps unsurprisingly in light of recent events, the Bill now provides that no account is to be taken of interim measures issued by the ECtHR (clause 24).

Despite considerable vocal opposition to the proposals during the consultation process, the Government has chosen to proceed at pace with these changes to UK human rights law. It appears that the Government sees divergence from Strasbourg as another aspect of its agenda to "take back control" and is certainly presenting this new Bill in that light. On closer examination however the Bill contains a number of measures which, if passed, would introduce uncertainty, divergence from the ECtHR and a reduction in the protection of rights in the UK. It remains to be seen how the Bill progresses through Parliament and whether any elements will be dropped or watered down to some extent, in a similar way to the recent Judicial Review and Courts Act as the Bill proceeds through Parliament.