The Government launched the Independent Human Rights Act Review (IHRAR) to see how well the Human Rights Act is working in the UK. Read our submission to IHRAR here.
Report Recap: “Legislative Scrutiny: Bill of Rights Bill”
On 17th January 2023, the Joint Committee on Human Rights (“the Committee”) released its Legislative Scrutiny report on the Bill of Rights Bill (better known as the Rights Removal Bill).
Legislative scrutiny is where a Parliamentary Committee, made up of MPs and/or members of the House of Lords, takes a close look at a proposed law to make comments and suggest changes. To do this, the Committee gathered evidence from people who are experts in and/or would be affected by the law changing and analysed the results.
This write-up gives a brief summary of the report. You can read it in full, including a list of evidence and suggested changes, on the Committee’s website.
Chapter 1: The Story So Far
The Committee started by explaining the history of the Bill of Rights Bill.
The Committee published its own into IHRAR which found no case for reform of the Human Rights Act and found the Act had “an enormously positive impact” on protecting human rights in the UK.
The IHRAR presented its findings to the Government, suggesting no large reforms to the Human Rights Act but practical changes to help people better understand and use the Act. However, these are not public at this point.
The Government published both the IHRAR report and its consultation, “Human Rights Act Reform: A Modern Bill of Rights”. Read our submission to the consultation here. Despite the short consultation period (three months, including Christmas) for such an important issue, the Government received 12,873 responses but the Committee said the Bill of Rights Bill “went against” the majority.
The Justice Secretary said he thinks that most of the responses reflect the views of charities and not the wider public but the Committees said this attitude is “very dismissive of a large volume of evidence from experts and citizens alike who engaged in good faith with the Government’s consultation process.”
The Scottish and Welsh Governments wrote to the Justice Secretary saying plans to replace the Human Rights Act with a Bill of Rights is an “ideologically motivated attack on freedoms and liberties”.
The Committee published a report on the consultation which found it had not made the case for replacing the Human Rights Act with a “Bill of Rights”.
The Committee, along with the Justice Committee, the Public Administration and Constitutional Affairs Committee and the House of Lords Constitution Committee wrote to the Justice Secretary urging him to allow pre-legislative scrutiny of the Bill (where a special Parliamentary Committee looks at the Bill in detail before it’s finalised). He didn’t.
The Bill was introduced to the House of Commons.
The Committee wrote to the Justice Secretary saying they were concerned the Bill of Rights Bill would weaken human rights protection in the UK and saying the Human Rights Memorandum which accompanied it did not back-up the Government’s arguments.
When Liz Truss MP became Prime Minister and Brandon Lewis MP became Justice Secretary, the Bill was paused and it was reported it “would not “come back in anything like its current form”.
Re-hired as Justice Secretary by new Prime Minister Rishi Sunak MP, Dominic Raab MP told the Committee that the “Bill of Rights is ready to go and we look forward to bringing it to Second Reading”.
The Committee then talked about what it has done so far to gather evidence. It received 78 responses to its written call for evidence, 41,.678 responses to its Twitter survey and heard oral evidence from a range of people.
- The majority of the written responses criticised the Bill.
- The Northern Ireland Human Rights Commission said the Bill appears to be incompatible with the Good Friday Agreement
- 96% of survey respondents said no to the question: “do you think the Human Rights Act should be replaced with a Bill of Rights?”
- 90% of survey respondents said the Bill of Rights Bill would weaken protection of human rights in the UK.
Interestingly, the Committee found “people were more likely to think that the HRA should be replaced by the Bill of Rights, and that the Bill of Rights would strengthen the human rights of people in the UK if they were unfamiliar with the HRA or the Bill.” This supports IHRAR’s suggestion that there should be more public education about how Human Rights Act works. At BIHR, we provide practical and accessible human rights for people, communities, public bodies and policy-makers so that they are able to understand and use the law to make real change.
The European Convention on Human Rights
When the Justice Secretary first introduced the Bill of Rights Bill in Parliament, he said the Government plans to stay in the European Convention on Human Rights (ECHR). He later said he wasn’t “entirely clear what the upsides” of leaving would be. However, the Committee said the Justice Secretary has since made statements that make it sound like the Government might consider leaving the European Convention on Human Rights. They said, “Leaving the Convention would be a deplorable and regressive step, which would see the UK become an outlier in Europe alongside Russia and Belarus. The Government must be unequivocal in its commitment to the Convention and must continue to comply with its obligations under it.”
Chapter 2: Interpreting the European Convention on Human Rights
Clause 3 of the Bill of Rights Bill would replace Section 2 of the Human Rights Act and mean that UK Courts only have to consider European Court of Human Rights (ECtHR) judgments to make sure they’re not giving more protections. Currently Section 2 says that UK courts must “take into account” any relevant case of the ECtHR, but they don’t have to follow it. The Committee report says this approach is confusing and means that people will have to go to the ECtHR for more rights protections than they can get in the UK. It also said the ECtHR is less likely to trust the UK’s judgment on how to protect rights.
It also raised concerns about the new clause telling courts to focus on the literal “text” of the rights rather than the meaning behind them. The Committee quoted BIHR to explain how important interpretation is:
“human rights are only effective if they reflect the world we live in. This is why the ECHR is a ‘living instrument’ that is intended to be interpreted to match the modern day.”
Clause 5 of the Bill would effectively get rid of “positive obligations” – which is the duty placed on the Government to not just not breach our rights but to take proactive steps to protect rights. The Government focused a lot on Osman warnings (which require police to tell people if they have intel about a threat to their life) but the Committee pointed out that the Government can change the guidance on this without overhauling human rights.
The Committee said the Government’s approach to positive obligations could be confusing because it can be hard to differentiate between positive and negative obligations. It also quoted BIHR to explain why it’s so important that courts can confirm new positive obligations when new situations come up:
“[n]ew situations arise all the time. For instance, during the Covid-19 pandemic we saw the importance of positive obligations to secure PPE for health and care staff as well as protecting clinically vulnerable people. It is reductionist and dangerous to seek to prevent our human rights applying in new situations.”
The Committee also looked at the John Worboys case, which meant the survivors of the “Black Cab Rapist” could hold the police to account for failing to protect them. While the Justice Secretary said his new Bill wouldn’t have impacted the case, the Committee disagreed.
Chapter 3: Interpreting UK laws
Section 3 of the Human Rights Act says other laws have to be interpreted in a way that’s compatible with human rights wherever possible. The Bill of Rights Bill would get rid of this rule. The Committee said this would mean that courts would have no other option but to declare laws incompatible with human rights but with no power to make positive changes for the people affected by them. It would also mean staff would have to knowingly breach human rights.
As the report says:
“The British Institute of Human Rights have described section 3 as a “very important tool that allows public authorities to make rights respecting decisions.””
Section 3 also means courts can say that secondary legislation (e.g. laws made by the Government rather than Parliament) should not be applied when it breaches human rights. The Bill of Rights Bill would get rid of this option, meaning courts can only declare it incompatible with human rights. The Committee said it’s worried this would mean there would be more declarations and so they would be taken less seriously. The declaration also does less to help people who have had their rights breached – although it might be better for the Government body that the claim is made against.
Clause 40 of the Bill of Rights Bill would give the Justice Secretary to keep interpretations that have already been made under Section 3. The Committee says this would give him unchecked power.
“The British Institute of Human Rights stated that legal uncertainty caused by the repeal of section 3 and introduction of clause 40 would “create chaos which ultimately will lead to more breaches of people’s human rights and place public bodies and their staff in incredibly difficult and confusing positions.””
Chapter 4: Separation of powers
Clause 7 of the Bill says courts must assume that Parliament has properly balanced different rights when it makes a law. While some people say this won’t make a lot of practical difference, the Committee said it will stop courts considering cases where it is obvious that potential rights breaches never occurred to Parliament when it made the law.
Section 19 of the Human Rights Act says Ministers have to say whether proposed laws are compatible with human rights. The Bill of Rights Bill gets rid of this. The Committee said this is problematic because Section 19 “drive[s] a process within government that ensures human rights concerns are taken seriously”. Although the Government says Ministers will still provide Parliament with an “ECHR memoranda” which sets out the implications for human rights, the Committee said these memoranda are not always of good quality.
Clause 25 of the Bill would mean the Justice Secretary has to let Parliament know when the ECtHR rules that the UK has breached the ECHR. The Committee said this is fine but there’s no need to change the law to do this.
Similarly, Clause 26 of the Bill would allow Ministers to change laws that aren’t compatible with human rights. This is similar to what they can do under the Human Rights Act – although Ministers can use the power to change the Human Rights Act but wouldn’t be able to do so to change the Bill of Rights Bill. Again, the Committee said this is fine but there’s no need to change the law.
Chapter 5: Making it harder to protect rights and get justice
Clause 15 of the Bill would mean someone has to show “significant damage” before they’re given permission to bring a human rights claim (although “significant damage” isn’t defined). Other areas of law have permission stages – but these just mean someone has to show their claim has a chance of success, not that they’ve suffered “significant damage”. This would make it harder to bring human rights claims than other types of claims.
The Committee also said that by complaining that human rights claims are “tacked on” to other claims against the Government, the Justice Secretary was ignoring the fact that the ECtHR will only hear claims that have previously been brought to UK courts so people must raise all the issues during their claim to protect their right to go to the ECtHR if necessary.
Clause 18 of the Bill would stop UK courts awarding higher damages than the ECtHR would – contradicting the Government claims that the Bill of Rights Bill would stop UK courts being restricted by the ECtHR. The Justice Secretary also wants to limit the damages people can get based on their behaviour because he thinks this applies in other laws in a concept known as “contributory negligence”. However, the Committee pointed out that “contributory negligence” only applies if the person’s behaviour contributed to the loss (ie is part of the reason why someone lost something or was harmed). The Bill of Rights Bill takes into account all behaviour even if it’s not related to the claim.
Section 7 of the Human Rights Act says people can rely on their human rights in any legal case. However, the Bill of Rights Bill only explicitly says people can rely on their human rights if they are making or defending a claim. The Committee said this might mean that some people – like children involved in family law proceedings – can’t rely on their human rights in legal cases. The Bill also doesn’t specify that national human rights bodies (like the Equality and Human Rights Commission or the Northern Ireland Human Rights Commission) can bring human rights claims (like they can under the Human Rights Act).
The Committee did say that it “welcomes the Government’s response” to a ECtHR case that said people should be able to get damages when judges prevent them having a fair hearing and breach their right to family life, even if they’re acting in good faith.
Chapter 6: International legal obligations
Clause 14 of the Bill stops people bringing human rights claims in relation to overseas military operations. The Committee said this would breach the UK’s obligations under the ECHR and that members of the armed forces do not “automatically lose the ability to enforce their human rights as a result of being deployed overseas.”
Clause 24 of the Bill says the UK should not take notice of any interim measures issued by the ECtHR (instructions to take or not take a step that would risk someone’s human rights until further notice – usually when a court case ends). The Committee said the UK is required to follow interim measures because it signed up to the ECtHR. The Committee also said that interim measures have not been discussed before so it seems likely that this clause was added in response to the recent judgment on the Rwanda policy. Read more about interim measures and how they applied in the Rwanda case here.
Chapter 7: Changing how rights are balanced and future changes
Clause 4 of the Bill says courts should “give great weight” to protecting freedom of speech. The Committee noted that in the Human Rights Act, freedom of expression covers both the right to give and receive information but Clause 4 only refers to giving information. The Committee said Liberty pointed out that this raises concerns because of “the Government’s history of lack of transparency in relation to Freedom of Information requests.” The Committee also said that the Clause doesn’t say what weight courts should give to other rights, so it might be that not much changes or it might be that rights like the right to family and private life are not given sufficient weight.
The Committee also said that the exceptions to this rule (in criminal proceedings; disclosure of information under a confidentiality agreement; citizenship decisions; and national security cases) would “shield the Government from the ability of individuals to rely on an enhanced right to free speech in certain contexts”. It particularly raises concerns about protest and cases where people cannot rely on their free speech where “Parliament has sought to criminalise it”.
Clause 8 of the Bill prevents courts from finding that the decision to make someone leave the country is incompatible with the right to private and family life except in cases of extreme harm. However, since existing laws about making people leave the UK have already been found to comply with human rights, the Committee said this suggests the Government are planning to introduce new laws which might not be. The Government has said it plans to introduce a new immigration bill soon.
Clause 20 also changes the rules that say the Government shouldn’t automatically rely on deportation assurances (where a Government of another country makes promises to the UK Government that they won’t breach someone’s human rights if a person is sent there). The Committee said this might lead to people’s right to a fair trial being breached.
Clause 9 of the Bill says that jury trials are one of the ways fair trial rights are protected in the UK. The Committee said this clause doesn’t make any difference to existing rights.
Chapter 8: Devolved nations
The Committee said, “In their evidence to us, the National Human Rights Institutions of the four nations of the UK, the Equality and Human Rights Commission (EHRC), the Scottish Human Rights Commission (SHRC) and the Northern Ireland Human Rights Commission (NIHRC) were in unanimous agreement that the HRA has helped to embed a human rights culture in public services and has made enforcing human rights more accessible across all nations of the UK.”
It also said that since many clauses in the Bill, like Clause 3 and Clause 5, will change how courts interpret human rights, it would have an impact in Scotland, Ireland and Wales. The Committee said the Government should therefore not change the Human Rights Act without the consent of the Scottish Parliament, Welsh Senedd and Northern Ireland Assembly.
Chapter 9: Conclusion
The Committee said the Bill undermines the universality of human rights, which “do not belong only to those who are well-behaved and who meet their responsibilities.” It also said It weakens human right protections both in and out of court, quoting RITES Committee member and Independent Social Worker Daisy:
“Removal of positive obligations … will make our [local authorities] and NHS bodies less accountable to both citizens and the system of justice … If public bodies are no longer required to act in these circumstances, instead adopting a reactive duty, it is likely that a ‘he who shouts loudest’ (or whose carers or parents shout loudest) management approach will be adopted across our pressurised public services, leaving those unable to speak up (or have someone to speak up for them) voiceless, including children and young people.”
The Committee pointed out that the way the Government talks about the Bill doesn’t match up with the way the Bill would actually work and that the Government has not shown that the public are not confident in the Human Rights Act. It said “there is significant opposition to the Bill” and “we cannot see how the Bill will achieve its own stated aims”.
The overall message is very clearly stated in the final line: “The Government should not progress the Bill in its current form through Parliament.”
The Government’s response to the report is due by 25th March 2023. Justice Secretary Dominic Raab has said he “did not agree with all the contents of the JCHR report”.
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