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Call for Evidence

Legislative Scrutiny: Bill of Rights Bill

Background

On 22 June 2022 the Bill of Rights Bill had its first reading in the House of Commons. The Bill, if enacted, would repeal and replace the Human Rights Act 1998. The introduction of the Bill of Rights follows: a 2019 manifesto commitment to “update” the Human Rights Act; the Independent Human Rights Act Review; two previous inquiries by this Committee; and the Government’s public consultation exercise which elicited over 12,000 responses.

 

The Bill of Rights

Although the Government has confirmed the UK will stay party to the European Convention on Human Rights (ECHR), the Bill of Rights would make significant changes to the Human Rights landscape in the UK. Clause 1 of the Bill states that the Bill “clarifies and re-balances the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament.”[1] The Bill would:

  • Repeal the Human Rights Act 1998
  • Require courts to have particular regard to the text of the Convention when interpreting Convention rights (clause 3(2));
  • Prohibit courts from interpreting a right in a way that expands the protection afforded by the right unless the court has “no reasonable doubt” that the European Court of Human Rights (ECtHR) would adopt that interpretation if the case were before it (clause 3(3));
  • Remove the current obligation on public authorities, including the courts to interpret legislation compatibly with Convention rights so far as possible;
  • Remove the current obligation on Ministers to make a statement as to whether Government Bills are compatible with human rights protections.
  • Limit the court’s ability to interpret Convention rights to include positive obligations on public authorities (clause 5);
  • Require the courts to accept that Parliament, in legislating, considered that the appropriate balance had been struck between different policy aims and rights and to give the “greatest possible weight” to the principle that it is Parliament’s role to strike such balances (clause 7);
  • Provide that deportation provisions may not be found incompatible with the right to private and family life unless it would result in manifest harm to a qualifying family member which is so extreme as to override the paramount public interest in deportation (clause 8);
  • Introduce a ban on victims bringing proceedings, or relying on Convention rights, in relation to acts of public authorities in the course of, or for the purpose of, overseas military operations (clause 14), if the Secretary of State is satisfied that to introduce a ban is compatible with the Convention (clause 39(3));
  • Introduce a new permission stage so individuals can only bring human rights claims if an individual has suffered a “significant disadvantage”, unless there is a “wholly exceptional public interest” reason to allow the claim to go ahead regardless (clause 15(3));
  • Require courts to take into account relevant conduct of victims and give great weight to the impact on public authorities when awarding damages in human rights claims (clause 18);
  • Provide that appeals against deportation based on the right to a fair trial must be dismissed unless the right would be nullified (clause 20(2)); and provide that the courts must treat deportation assurances as determinative unless the court cannot reasonably conclude that the assurances will prevent a nullification of the right to a fair trial (clause 20(3)).
  • Significantly restrict the circumstances in which the courts and other public authorities are permitted to take into account interim measures issued by the ECtHR (clause 24).

The Bill also seeks to enhance (a narrower form of) freedom of speech, with certain exemptions, and provides for the right to a jury trial in certain circumstances.

 

Our Inquiry

On 30 June 2022 the Committee wrote to the Secretary of State for Justice and Lord Chancellor, the Rt Hon Dominic Raab MP setting out our preliminary analysis of the Bill of Rights (available here). The Committee will continue to conduct legislative scrutiny of the Bill of Rights and produce a report in due course.

To help inform our work we would welcome evidence covering the following questions:

 

Relationship between the UK Courts and the European Court of Human Rights

  1. Clause 3 of the Bill states how courts must interpret Convention rights, including by requiring them to have “particular regard to the text of the Convention right.” What would be the implications of clause 3?

  2. Clause 3 also provides that the courts may diverge from Strasbourg jurisprudence but may not expand protection conferred by a right unless there is no reasonable doubt that the ECtHR would adopt that interpretation. What are the implications of this approach to the interpretation of Convention rights?

 

Interim measures and the UK’s international obligations

    3. Clause 24 would affect how UK courts and public authorities take account of interim measures of the ECtHR, prohibiting them from doing so in many circumstances. Is this compatible with the UK’s obligations under the ECHR and international law?

 

Parliamentary scrutiny of human rights

    4. The Government’s consultation suggested that the role of Parliament in scrutinising human rights should be strengthened. Would the Bill of Rights achieve this? How could this be achieved?

    5. The Bill removes the requirement in section 19 HRA for Ministers to make a statement as to whether a Government bill is compatible with human rights. What impact would this have on Parliamentary scrutiny of human rights?

 

Interpreting and applying the law compatibly with human rights

    6. The Bill removes the requirement in section 3 HRA for UK legislation to be interpreted compatibly with Convention rights “so far as possible”. What impact would this have on the protection of human rights in the UK?

    7. Clause 40 enables the Secretary of State to make regulations to “preserve or restore” a judgment that was made in reliance on section 3. Do you agree with this approach? What implications does it have for legal certainty and the overall human rights compatibility of the statute book?

    8. Clause 5 of the Bill would prevent UK courts from applying any new positive obligations adopted by the ECtHR following enactment. It also requires the courts, in deciding whether to apply an existing positive obligation, to give “great weight to the need to avoid” various things such as requiring the police to protect the rights of criminals and undermining the ability of public authorities to make decisions regarding the allocation of their resources. Is this compatible with the UK’s obligations under the Convention? What are the implications for the protection of rights in the UK?

    9. Clause 7 of the Bill requires the courts to accept that Parliament, in legislating, considered that the appropriate balance had been struck between different policy aims and rights and to give the “greatest possible weight” to the principle that it is Parliament’s role to strike such balances. In your view, does this achieve an appropriate balance between the roles of Parliament and the courts?

   10. Clause 12 would replace the current duty, in section 6 HRA, on public authorities to act compatibly with human rights unless they are required to do otherwise as a result of legislation. In the absence of the obligation to read legislation compatibly with Convention rights, what impact would clause 12 have on (a) individuals accessing public services and (b) public authorities?

 

Enforcement of Human Rights: Litigation and remedies

    11. Does the system of human rights protection envisaged by the Bill ensure effective enforcement of human rights in the UK, including the right to an effective remedy (Article 13 ECHR)?

    12. Do you think the proposed changes to bringing proceedings and securing remedies for human rights breaches in clauses 15-18 of the Bill will dissuade individuals from using the courts to seek an effective remedy, as guaranteed by Article 13 ECHR?

    13. Do you agree that the courts should be required to take into account any relevant conduct of the victim (even if unrelated to the claim) and/or the potential impact on public services when considering damages?

 

Specific rights issues

    14. Clause 6 of the Bill would require the court, when deciding whether certain human rights of prisoners have been breached, to give the “greatest possible weight” to the importance of reducing the risk to the public from persons given custodial sentences. What effect would this clause have on the enforcement of rights by prisoners?

    15. Clauses 8 and 20 of the Bill restrict the application of Articles 8 (right to private and family life) and 6 (right to a fair trial) in deportation cases. Do you think these provisions are compatible with the ECHR?

    16. Clause 14 introduces a total ban on individuals bringing a human rights claim, or relying on a Convention right, in relation to overseas military operations, subject to the Secretary of State being satisfied that this is compatible with the UK’s obligations under the Convention. Does this comply with the UK’s obligations under the ECHR and international law? If not, what would need to be amended to ensure clause 14 is consistent with the UK’s obligations under the Convention?

    17. The Bill introduces a limited right to trial by jury. What would be the legal significance of the right?

    18. The Bill strengthens protection for freedom of speech, with specific exemptions for criminal proceedings, breach of confidence, questions relating to immigration and citizenship, and national security. Do you think these changes are necessary? What would be the implications of giving certain forms of speech greater protection than other rights?

    19. Why do you think the Government has chosen to protect freedom of speech rather than freedom of expression, as guaranteed in Article 10, and what are the implications of treating the elements of Article 10 differently?

 

The Human Rights Act and the Devolved Nations

    20. How would repealing the Human Rights Act and replacing it with the Bill of Rights as proposed impact human rights protections in Northern Ireland, Scotland and Wales?

    21. Should the Government seek consent from the devolved legislatures before enacting the Bill and, if so, why?

In addition to calling for written evidence from people wishing to respond to the questions set out in the terms of reference, the Committee has also set up an online survey to hear a wider range of views on the Bill of Rights Bill.

Link to the online survey can be found here.

 

Important information about making a submission

Written evidence must address the questions as set out above, but please note that submissions do not have to address every point. Guidance on giving evidence to a select committee of the House of Commons is available here.

In line with the general practice of select committees the Joint Committee on Human Rights is not able to take up individual cases. If you would like political support or advice you may wish to contact your local Member of Parliament.

The Committee will decide whether to accept a submission and whether to publish it on its website.  All written evidence will be considered by the Committee, whether or not it is published. If your submission is accepted by the Committee, it will usually be published online and will be available permanently for anyone to view. It can’t be changed or removed. If you have included your name or any personal information in your submission, that will normally be published too. Please consider carefully how much personal information you need to share. If you include personal information about other people in your submission, the Committee may decide not to publish it. Your contact details will never be published.

If you would like to ask the Committee to accept your submission anonymously (meaning it will be published but without your name), or confidentially (meaning it won't be published at all), please say at the start of your evidence which of these you request, and tell us why. This lets the Committee know what you would like but the final decision will be taken by the Committee.

If your evidence raises any safeguarding concerns about you or other people, then the Committee has a duty to raise these with the appropriate safeguarding authority.

If you have immediate safeguarding concerns about yourself or someone else or specific allegations of illegal practices, you should contact the Police on 999.

We can’t publish submissions that mention ongoing legal cases – contact us if you are not sure what this means for you.

 

Please send submissions of no more than 3,000 words through the online portal by 26 August 2022.

 

[1] Bill of Rights Bill - Parliamentary Bills - UK Parliament.

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