The Bill of Rights: What it means for human rights cases and what may change
On 22 June, the Bill of Rights Bill had its first reading before Parliament.
Since it was first hinted at in 2013, promises of altering or repealing the Human Rights Act 1998 (HRA) have appeared in Conservative Party manifestos under David Cameron, Theresa May, and Boris Johnson.
There have been numerous consultations and committees examining the HRA. Most recently, the Independent Human Rights Act Review in 2020-21 saw the government introduce a proposed Bill of Rights and invited responses to it. Its executive summary suggested that: “Our reforms will be a check on the expansion and inflation of rights without democratic oversight and consent….”
The Human Rights Act 1998 – Key Provisions
The HRA was first introduced by the Labour government under Tony Blair’s leadership some 25 years ago following the manifesto pledge: “We will, by statute, incorporate the European Convention on Human Rights (ECHR) into UK law to bring these rights home and allow our people access to them in their national courts”.
Its purpose is to enable the enforcement of ECHR rights in UK courts, whilst still respecting Parliamentary sovereignty.
It has been a hugely successful piece of legislation that has been used by individuals, organisations and public bodies to promote progressive policies and fairness across all areas of society. It has been used to take a balanced approach to some of society’s most difficult issues.
A strongly held view of many who responded to the consultation is that the judiciary has complied with the fundamental constitutional principles of parliamentary sovereignty and separation of powers when applying the HRA.
Section 2 of the HRA requires courts to ‘take into account’ (not unquestioningly follow) judgments of the European Court of Human Rights (ECtHR). This allows UK courts to give effect to ECHR rights and apply ECtHR case law, without requiring absolute deference to those decisions. It also creates an opportunity for there to be dialogue between the ECtHR and UK courts, where each can learn from the other about how best to interpret provisions in a UK context, in line with the established margin of appreciation afforded to member states.
Section 3 of the HRA requires UK courts to read and give effect to legislation in a way which is compatible with ECHR rights. This reflects Parliament’s commitment that it will not legislate in a way which is contrary to ECHR rights.
Section 4 of the HRA enables UK courts to make “declarations of incompatibility” where a provision of legislation is incompatible with an ECHR right, and therefore in effect to invite – but not require – Parliament to rectify that incompatibility. Declarations of incompatibility are rare, and in the 22 years of the HRA being in force, only 43 have ever been issued.
Lastly, Section 6 makes it ‘unlawful’ for public authorities to act in ways which are incompatible with ECHR rights.
What will Change? A narrower, restrictive interpretation of rights?
If the new Bill of Rights is adopted in line with its current draft, some things will remain the same.
The UK will remain a party to the ECHR and the Bill would still give effect to the same rights that the HRA does.
Public authorities will still have a duty to act compatibly with ECHR rights but domestic courts will be prohibited from adopting new interpretations of convention rights that would require a public authority to comply with a positive obligation.
There will still be the option for courts to make declarations of incompatibility, and for people to take their case to the ECtHR as last resort.
However, some things will not remain the same. The Bill of Rights will make it more difficult to enforce ECHR rights in the UK courts.
The Bill has no equivalent to Section 3 HRA. Its equivalents for Sections 2 and 6 HRA are much weaker, and will likely generate more narrow and restrictive judicial interpretations of ECHR rights, and potentially lead UK courts to depart from some ECtHR judgments.
Declarations of incompatibility are likely to be made (even) less often, as the Bill requires UK courts to “give the greatest possible weight” to the principle that decisions about how to balance policy aims and ECHR rights are “properly made by Parliament”.
Interim measures ordered by the ECtHR against the UK, such as occurred in June 2022 to prevent the removal of asylum-seekers to Rwanda, are not to be taken into account by domestic courts. This raises concerns regarding the UK’s international standing and is inconsistent with the government’s maintained position that the UK is to remain a party to the ECHR.
The Bill of Rights seeks to limit human rights claims brought against public authorities by introducing a new hurdle of requiring people bringing claims to seek permission first. This new legal stage in a claim will inevitably increase legal costs and length of time to reach a final decision in a case.
A claimant will be required to demonstrate to a court that they have suffered a “significant disadvantage” before they can bring their claim to trial. A potential consequence is that those who are refused permission to bring their case within the UK may apply to the ECtHR. Consequently, this requirement may result in an increase of claims to the ECtHR in Strasbourg.
Criticisms of the Bill
Such significant proposed changes to human rights legislation have led to widespread criticism.
Campaign groups Amnesty International and Liberty have voiced their concerns about the Bill’s restrictive approach to protection of rights.
The chief executive of Amnesty International UK has said: “Ripping up the Human Rights Act means the public is being stripped of its most powerful tool to challenge wrongdoing by the Government and other public bodies…. This is not about tinkering with rights, it’s about removing them.”
Response to Independent Human Rights Act Review
In 2021, Irwin Mitchell provided a response to the Call for Evidence on the Independent HRA Review. We argued that the HRA “should not be changed in any way that would have the effect of diluting the rights of individuals”.
Crucially, the expert led review concluded that the HRA has been “a success” and did not advocate for radical change. It made only modest recommendations. Therefore, careful scrutiny of the Bill is necessary to ensure the new more restrictive measures do not negatively impact people’s rights to challenge the decisions of public bodies.
Adding more legal hurdles and narrowing the interpretation of international human rights would almost certainly mean a reduction in access to justice for British citizens.
As the Bill is in the First Reading stage, there are still opportunities for Parliament to scrutinise the proposed changes and make amendments to the Bill. Irwin Mitchell will continue to follow the progress of this significant Bill through the legislative process, including discussing different parts of the Bill in further detail.
Find out more about Irwin Mitchell's expertise in handling human rights cases at our dedicated protecting your rights section.