A new Bill of Rights Bill 2022: A Brief Overview

The new Bill of Rights Bill repeals and replaces the Human Rights Act 1998. Repeal of the 1998 Act was not strictly necessary as the Human Rights Act could have been amended. The new Bill contains articles 1–3 of the First Protocol and Article 1 of the Thirteenth Protocol and the new Bill shares many characteristics of the 1998 Act including the Government’s intention to remain a state party to the European Convention of Human Rights. That intention is not explicitly made clear in the new Bill, but it is implied in its content and drafting, since it builds on the declaration of incompatibility found in the 1998 Act. As with the 1998 Act the declaration does not hold an Act as invalid or illegal and it will trigger clause 26 (as in section 10 of the 1998 Act) of the new Bill to enable ministers to make regulations to correct the offending legislation.

However, the new Bill provides that UK membership of the European Convention is on the UK’s own terms, setting out how Strasbourg Court’s decisions are to be interpreted by UK courts. Arguably this may set up some distance between the UK’s interpretation of the Convention and the Strasbourg Court. Potentially this will open up a gap between UK law and the UK’s obligations in international law under the Convention.

The main features of the new Bill of Rights include the following:

The European Convention of Human Rights: The Bill accepts Convention rights set out in the schedule to the Bill. Clause 3 of the new Bill (replaces section 2 of the Human Rights Act) and makes the UK Supreme Court the ultimate judicial authority on “questions arising under domestic law in connection with Convention rights.” This may lead to tensions between international law (the Strasbourg Court) and UK domestic courts. Particular regard is to be given to the text of the Convention rights including the “preparatory work of the Convention”. The explanatory notes (no 6) state: “The Bill will encourage courts to take a more constrained approach to interpreting Convention rights, as compared to the current framework under the HRA”. The explanatory notes (no 7) provide that the Bill will restore “the habitual manner in which courts approach statutory interpretation”. The term is not clear as to how the courts are expected to interpret such advice. Clause 3 allows the UK courts to depart from Strasbourg jurisprudence and cannot expand the protection offered by the Convention and unless the UK court is confident that “beyond a reasonable doubt” the Strasbourg Court would do the same.

The abolition of section 3 of the Human Rights Act 1998 which requires the UK courts to interpret UK legislation compatible with the Convention will leave an important gap to be filled. The repeal of section 3 leaves some uncertainty including the extent to which current interpretations of the Strasbourg jurisprudence under the Human Rights Act will continue. Points 7-10 of the explanatory notes make clear that the Government wises to increase democratic oversight of human rights issues. Regulation making powers are included in the new Bill to allow the preservation of the effect of various interpretations under section 3. This will be largely at the discretion of ministers – thus allowing a continuing monitoring of the use of judicial discretion. This effectively means that the Executive will oversee the discretion of the judiciary and its operation case by case.

Reduce burdens on public authorities: The explanatory notes (nos 12-14) provide that the Bill will limit the imposition of positive obligations on UK public services. In cases where public authorities are giving clear effect to primary legislation, they will not be acting unlawfully. There will also be a greater weight to the views of Parliament in consideration of the public interest and to interpret words in line with their “ordinary meaning.” Clause 7 of the Bill will require courts to treat Parliament as the best arbiter of how a balance should be struck between various competing factors. Potentially this could include the interpretation of the proportionality test in terms of Parliamentary democracy, rather than judicial discretion. It remains to be seen how the courts will interpret this clause. It does not preclude independent judicial discretion but it seeks to set the boundaries of how it may be exercised. Clause 5 (2) of the Bill requires that the courts take into account whether or not applying the obligations “would disproportionately constrain resources thus impacting on public authorities’ other areas of work”.

An innovation is the introduction of a permission stage to ensure that “trivial cases” do not undermine public confidence in rights for human rights cases. New Clauses 15 and 16 establish the permission procedure and a new test of “sufficient interest.” Clause 16 (2) requires that a person must be a victim or would be a victim of the act complained about. The explanatory notes (nos 15-17) set out that the claimants will have to show that they have suffered a significant disadvantage but this may not be required if there are wholly exceptional reasons on the grounds of public importance.

The Bill also recognises that responsibilities exist alongside rights and that would include considering the claimants’ conduct.

The award of damages will be conditional on the court’s assessment of the public interest and the impact on a public authority’s ability to continue to provide services to society.

Sectoral areas: Deportation cases: Clause 8 of the Bill prevents UK courts from finding legislative provisions on deportation that would be incompatible with Article 8 rights. Such rights would be restricted to only cases where the harm is so extreme that it would otherwise override the public interest. The harm would only be extreme that it is so exceptional it cannot be mitigated to any significant extent and is otherwise irreversible. There are also restrictions on Article 6 claims to avoid deportation.

Extraterritorial: The Bill will apply extraterritorially to the extent of the UK’s obligations under the Convention but there is an express exclusion for military operations overseas. There is promised legislation to provide for compensation and alternative remedies to address compatibility issues under the Convention.

The right to freedom of expression and free speech and journalist sources. The first, freedom of speech will also have exceptions to be provided in the Bill. On journalist sources, the Bill will amend section 10 of the Contempt of Court Act 1981 and replace the protections afforded to journalists about the disclosure of their sources with a new condition that the Court must be satisfied that there is an exceptional and compelling reason why disclosure is in the public interest and one of the three bases on which disclosure can be ordered ie: that it is necessary in the interests of justice, national security or the prevention of disorder or crime must be engaged.

Conclusions:

The new Bill of Rights is likely to re-set relations between the UK and the Strasbourg Court. It is likely to add complexity to the law, as UK courts may develop a jurisprudence and interpretations more restrictive than the Strasbourg Court. The premise underlying many of the Bill’s clauses is that the judiciary have to be kept in check and under scrutiny to avoid any expansive interpretation of human rights. The new Bill is intended to apply throughout the UK, including the devolved nations. Northern Ireland’s unique Protocol arrangements are arguably weakened by the Bill and the development of human rights, an underlying part of the peace process may come under pressure. The Bill is therefore likely to be highly contentions.

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