Ninth Report - Legislative Scrutiny: Bill of Rights Bill

We have hardly heard any support for the Bill of Rights Bill. The Government- commissioned Independent Review did not support repeal or reform of the Human Rights Act 1998; the Government’s consultation analysis showed very little support for a Bill of Rights; the evidence we have received in this inquiry is overwhelmingly against the Bill; and there is significant opposition to the Bill from the Governments of Scotland, Wales, and in relation to its potential impact in Northern Ireland. The previous administration also took the decision to halt and reconsider the Bill. Given the significant opposition, we urge the Government to reconsider its decision to proceed with the Bill.

We welcome the various statements made by the Government that affirm its commitment to remaining party to the ECHR. However, the Secretary of State cast doubt over those commitments when he refused to rule out the possibility of the UK leaving the Convention in the future. 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. (Paragraph 32) Approach to interpretation: Convention rights

Any suggestion of an ‘originalist’ approach to the interpretation of Convention rights would be damaging to human rights in the UK. The living instrument doctrine ensures protection for the human rights we recognise now, rather than those accepted in 1950. It is central to the operation of the Convention.

Clause 3 of the Bill of Rights would replace the sensible, balanced approach to interpretation of the Convention set out in section 2 HRA with a more complex and less effective alternative. Emphasis on the original text of the Convention, and the absence of direct reference to the case law of the European Court of Human Rights, puts at risk the development of domestic human rights protection consistent with that provided by the Strasbourg Court. Restricting UK courts’ ability to go further than the European Court of Human Rights in protecting Convention rights obstructs the creation of domestic human rights case law and damages the current positive judicial dialogue between our courts and Strasbourg. This could reduce the ‘margin of appreciation’ currently afforded to the United Kingdom by the European Court of Human Rights.

Clause 3 increases the likelihood that domestic claimants will need to take their claims to the Strasbourg court to obtain an effective remedy for violations of their human rights and increases the likelihood of the UK being found in breach of its human rights obligations in international law.

Section 2 of the HRA is not in need of amendment. Clause 3 should be replaced with a clause mirroring the current law (see Annex, Amendments 1 and 2). (Paragraph 61) Legislative Scrutiny: Bill of Rights Bill 111

The suggestion that positive obligations can be severed from negative obligations and either ignored or applied in a restricted manner is untenable. The positive duties arising from the Convention are expressly or impliedly contained within the Convention rights and are an important mechanism for securing rights protection for all persons within the jurisdiction of the State.

The evidence we have received makes clear that positive obligations have been vital for securing the protection of some of the most vulnerable people in society, such as women and girls experiencing domestic violence, ‘honour-based’ violence, or stalking. Positive obligations upon public authorities can save lives. We are therefore extremely concerned by the restrictive approach to positive obligations contained in clause 5 of the Bill.

The prohibition on the application of new positive obligations in the domestic courts, and the restrictions placed upon the application of existing positive obligations, is likely to put the UK at odds with the jurisprudence of the European Court of Human Rights (ECtHR). It is not clear to us how the courts can simultaneously be expected to comply with Convention rights (clause 12) and yet ignore or restrict their application. As a result of clause 5, it is highly likely that there will be a divergence between domestic and ECtHR interpretations of Convention rights. If an individual is unable to rely on their full Convention rights under domestic law, the individual would need to take their case to Strasbourg to seek a remedy, potentially leading to an adverse judgment against the UK. The Government is bound in international law to comply with final adverse judgments as required under Article 46 ECHR. Clause 5 cannot remove our obligations under international law—it will simply introduce barriers to the enforcement of rights in the domestic courts, increase the time and costs of litigation for both individuals and public authorities, and create a long road to enforcement in Strasbourg.

Far from giving greater certainty to public authorities, clause 5 will inevitably lead to uncertainty and litigation as questions will arise as to what constitutes an “interpretation”, how to decide whether an obligation should be cast as “positive” or “negative”, and whether an interpretation is new or already in existence. This undermines the Government’s objective to increase certainty for public authorities and reduce the burdens on their resources.

Unless the Government is prepared to reconsider Clause 5, we would like to see this clause removed from the Bill (Annex, Amendment 3). (Paragraph 87) Approach to interpretation - domestic legislation

We agree with the overwhelming majority of those that responded to the Government consultation and those who submitted evidence to our Committee that section 3 HRA does not undermine parliamentary sovereignty and that it should not be repealed. Repealing section 3 HRA will leave more victims with no effective remedy, having to take claims to the European Court of Human Rights to enforce their rights. It will also result in more legislation that is incompatible with Convention rights remaining in force, affecting more people while Government decides whether and how to remedy the incompatibility. It weakens the obligation on public authorities to act compatibly with Convention rights under clause 12. Furthermore, 112 Legislative Scrutiny: Bill of Rights Bill as recognised in our previous report on the Government’s consultation proposals, the section 3 HRA obligation has a key role to play in the development of a human rights culture in the public sector. Its removal will hinder and potentially undo any such development.

Section 3 HRA should not be repealed. If the Bill of Rights is to replace the Human Rights Act, it should be amended to include a provision equivalent to section 3 HRA (see Annex, Amendment 4). Clause 12 of the Bill must also be amended to take this provision into account, recognising that it will only be lawful for public authorities to act incompatibly with Convention rights when they are required to do so by legislation that cannot be read compatibly with the Convention (see Annex, Amendments 5 and 6).

In the absence of any record of which judgments have relied on section 3, there are likely to be substantial disagreements, and therefore substantial litigation, over whether some cases did or did not involve the use of section 3 and whether the interpretation adopted has or has not been undone by the repeal of that section. It would be helpful if the courts were in future to indicate clearly when they are relying on section 3 HRA, or on an equivalent replacement provision in the Bill of Rights, and for a record of those instances to be kept.

Should section 3 HRA be repealed, it will result in significant legal uncertainty over the status of statutory interpretations made prior to the Bill of Rights coming into force. Whilst some uncertainty may be justified in the interests of positive reform, the repeal of section 3 is unnecessary and harmful to human rights. Clause 40 would do little to resolve the uncertainty and harm caused. It would also run counter to the Government’s intention to enhance parliamentary sovereignty, placing too much power in the hands of the Secretary of State to decide which laws should and should not remain compliant with human rights.

We have recommended that a clause equivalent to section 3 HRA is added to the Bill. Quite apart from our concerns about its appropriateness and its impact, clause 40 would serve no purpose if section 3 HRA is not repealed. We therefore recommend clause 40 is removed from the Bill (see Annex, Amendment 7).

A declaration of incompatibility does not provide victims with a prompt and effective remedy for human rights violations. It nevertheless represents a reasonable compromise between the protection of human rights and respect for parliamentary sovereignty. Without this strong constitutional justification there is no need for resort to a declaration of incompatibility, and no such justification applies to giving the courts the power to making declarations of incompatibility in respect of all subordinate legislation. Particularly given the remedial flexibility recently confirmed for the courts in the Judicial Review and Courts Act 2022, there is no justification for extending declarations of incompatibility beyond their current application under the HRA.

Clause 10 of the Bill should be amended to reinstate the position under the Human Rights Act: restricting the availability of declarations of incompatibility to circumstances in which the courts have identified an incompatibility with Convention rights in either Legislative Scrutiny: Bill of Rights Bill 113 a provision of primary legislation, or in a provision of subordinate legislation that cannot be removed as a result of primary legislation (see Annex, Amendment 8). (Paragraph 127) The relationship between the Executive, the Legislature, and the Judiciary

In most circumstances, clause 7 will make little difference to the approach taken by the courts as they already show significant respect for the decisions reached by Parliament. However, in those circumstances where Parliament has not considered particular implications of its legislation, and where individual rights rather than broad policy issues are at stake, clause 7 could tie the courts’ hands when they are attempting to engage in an effective assessment of compatibility. Ultimately, legislation that a court acting freely may consider to be incompatible with the Convention could instead be given a clean bill of health. This is inconsistent with the UK’s obligations under the ECHR. It is likely to put the UK courts out of step with the ECtHR, resulting in victims within the UK needing to take their cases to Strasbourg directly rather than domestic courts in order to enforce their rights, and in Parliament eventually having to legislate to remedy the incompatibility years later.

Clause 7 is largely unnecessary and, where it would have effect, would be inconsistent with the UK’s obligations under the ECHR. Unless the Government is prepared to reconsider clause 7, we would like to see it removed from the Bill (see Annex, Amendment 9).

Section 19 of the Human Rights Act has its value in requiring the Minister to consider the impact of their legislation on Convention rights, which are protected under UK law. The Minister then confirms to Parliament that this process has taken place, and notifies Parliamentarians as to whether they are being asked to pass legislation that cannot be clearly stated to comply with our international obligations under the Convention. This should not be problematic. Ministers should want their legislation to be compatible with our Convention obligations and should take these obligations seriously. They must be open and clear with Parliament about the likely compatibility of their proposals with the ECHR.

Section 19 of the Human Rights Act must not be repealed. Its provisions should instead be strengthened to require statements of compatibility to be provided upon introduction of a Bill rather than before second reading. The Bill should be amended to this effect (see Annex, Amendment 10).

The quality of information provided to Parliament to enable it to perform its constitutional role is vital. Some ECHR memoranda are not of a sufficient quality to assist our scrutiny. The Government must improve the timeliness and quality of the information it provides to Parliament about the human rights implications of its legislation. The Government should also put its commitment to publishing human rights reasonings and justification for all Government Bills, which we welcome, on a statutory footing. The Bill of Rights should be amended to this effect (see Annex, Amendment 10). (Paragraph 165) 114 Legislative Scrutiny: Bill of Rights Bill

Parliament should be informed of adverse judgements by the European Court of Human Rights. This could occur by convention rather than statute. The Government should also provide Parliament in such cases with an action plan, setting out how the Government intends to resolve the issue that led to the judgement, and its proposed timeframe for doing so.

The Government should also inform Parliament when declarations of incompatibility are made by domestic courts in the same way as for adverse ECtHR judgments. Again, such information would be helpfully accompanied by an action plan setting out the issues in the case alongside the proposed timescale for addressing the incompatibility.

We ask the Government to engage with us on agreeing a process for informing Parliament where there are declarations of incompatibility made by domestic courts.

Clause 26 should be amended to ensure that the remedial power is available in respect of existing incompatibilities as well as those that arise in future (see Annex, Amendments 11 and 12).

The Government should amend the remedial regulations provisions to ensure that there is no risk of the procedure being unavailable where declarations of incompatibility occur before the Bill becomes law. We ask the Government to consider shortening the time frames for remedial regulations as we have previously proposed. The remedial order process seems to cause difficulties for some Government departments. The drafting of the schedule should be updated to make the remedial process and its requirements easier to follow. (Paragraph 180) Restrictions on enforcement and remedies

While the proposal to introduce a new permission stage will only have an impact on human rights claims in which no significant disadvantage has been suffered, it will still prevent meritorious claims, potentially affecting many individuals, being heard. Legislating to establish a class of permissible human rights violations, and restricting human rights claims in a manner that does not apply to legal claims brought on other grounds, undermines the UK’s commitment to uphold human rights. The Government should reconsider whether introducing the permission stage will achieve its aims, and whether it would leave the UK in breach of its international obligations. Unless the Government is prepared to reconsider clause 15, we would like to see it removed from the Bill (see Annex, Amendment 13).

There is no need for domestic courts to be prohibited from, exceptionally, making a damages award that is more generous than that which would be made by the ECtHR. This prohibition should be removed from the Bill in favour of the existing general obligation to take into account the principles applied by the European Court of Human Rights in relation to the award of compensation (see Annex, Amendments 14 and 15).

Human rights by their nature are universal—they are inherent in the human condition and not dependent on good conduct. Any efforts to categorise certain Legislative Scrutiny: Bill of Rights Bill 115 groups of people as being less deserving of human rights protection is contrary to the very concept of human rights. Directly legislating for previous conduct to be taken into account when awarding damages encourages the courts to make judgments on whether a victim deserves an effective remedy for a violation of their rights. Clause 18(5)(a) poses a risk to the universal nature of human rights and should be removed from the Bill (see Annex, Amendment 14 and 15).

The focus of any assessment of damages in a human rights claim should be the need to provide the victim with an effective remedy. Requiring the courts to give “great weight” to the importance of minimising the effect an award of damages might have on a public authority’s ability to perform its functions distracts from this focus, prioritising instead the interests of the body responsible for the human rights violation. We recommend that clause 18(6) is removed from the Bill. The existing obligation to take into account the principles applied by the ECtHR in relation to the award of compensation should be reinstated (see Annex, Amendments 14 and 15).

Whether or not it is deliberate, clause 13 of the Bill unnecessarily risks narrowing the circumstances in which individuals can rely on their Convention rights. The Bill should be amended to make clear that Convention rights can be relied on in any legal proceedings (see Annex, Amendments 16 and 17).

The ability of the Equality and Human Rights Commission and the Northern Ireland Human Rights Commission to bring cases under the Human Rights Act of their own motion is an important part of their function as human rights champions. It is possible that the omission of the retention of this ability from Schedule 5 of the Bill is inadvertent. In any event, it needs to be rectified. We recommend that Schedule 5 of Bill is amended to make clear that the Equality and Human Rights Commission and the Northern Ireland Human Rights Commission retain their ability to bring own motion cases (see Annex, Amendments 18 and 19).

We welcome the Government’s response in clause 19 to the judgment of the European Court of Human Rights in S.W. v United Kingdom. It would correct section 9 of the Human Rights Act, which is currently inconsistent with the European Convention on Human Rights to the extent that it prohibits damages being awarded for judicial acts done in good faith that violate the right to a fair procedure guaranteed by Article 8 (the right to respect for private and family life). (Paragraph 223) Approach to international legal obligations

Clause 14, together with clause 39, paves the way for future legislation to limit the extraterritorial application of the Convention by excluding acts done in the course of overseas military operations. At present, service personnel, veterans, and affected civilians will continue to have the right to bring claims, or rely on Convention rights in domestic law, as provided for by the Bill of Rights. Provided it is not brought into force, clause 14 does not breach the Convention, given its deferred commencement. It merely signals the Government’s intention.

Unless the UK successfully renegotiates the scope of extraterritorial jurisdiction under the Convention to exclude overseas military operations, if the Government 116 Legislative Scrutiny: Bill of Rights Bill wants to bring clause 14 into force it will have to ensure that effective remedies are still available in domestic law for breaches of Convention rights which occur in the course of overseas military operations. If the UK enacts alternative remedies to ‘fill the gap’ left by clause 14, these must be effective within the meaning of Article 13 ECHR (i.e., the remedy must be effective in practice and its exercise must not be unjustifiably hindered by the state). These alternative remedies must be considered by Parliament and subject to proper scrutiny to assess Convention-compliance. Any failure to provide for effective remedies for breaches of Convention rights in domestic law will result in increased litigation in Strasbourg.

Unless the Government is prepared to reconsider clause 14, we would like to see it removed from the Bill (see Annex, Amendment 20). Such a provision should only be included if and when alternative remedies are available that have been subject to parliamentary scrutiny such that Parliament (and not just the Secretary of State) is satisfied that excluding overseas military operations from the scope of the Bill of Rights would be compatible with the Convention.

The UK is bound under Article 34 of the Convention to comply with interim measures issued by the European Court of Human Rights. Clause 24 appears to signal to the European Court of Human Rights the current Government’s dislike for the Court’s recent interim decision regarding Rwanda. Clause 24(1) appears to have no legal effect in domestic law, but arguably shows a disregard for our international legal obligations. However, clause 24(2) and (3) gives the express instruction to public authorities, courts, or any other person to disregard our international legal obligations. This is concerning and undermines the principle that the UK will act in good faith with its international legal obligations.

Unless the Government is prepared to reconsider clause 24, we would like to see it removed from the Bill (see Annex, Amendment 21). In its place express provision should be made in the Bill to incorporate into domestic law our existing obligation to comply with interim measures as an essential means to secure the right to individual petition and the full enjoyment of Convention rights within our jurisdiction (see Annex, Amendment 2). (Paragraph 249) Tipping the balance and future reforms

It is not clear how the courts will interpret and apply the need to give “great weight” to free speech contained within clause 4. This is a similar requirement to the existing obligation in section 12 HRA to give particular regard to freedom of expression, which does not appear to have had any material impact on the balancing of Convention rights where Article 10 (freedom of expression) is engaged. The impact of clause 4(1) is therefore uncertain.

Clause 4(2) excludes from the “great weight” provision some of the most important scenarios in which the State may wish to restrict free speech: criminal proceedings and compatibility of criminal offences, certain immigration decisions, and decisions concerning national security. These are areas in which decisions taken by the State are likely to interfere with the right to free speech. The strengthened right to free speech will therefore only apply selectively. (Paragraph 263) Legislative Scrutiny: Bill of Rights Bill 117

In our view, the rights contained in Article 10 should not be severed—the right to receive information is equally as important as the right to impart information. Nor should free speech be placed on a pedestal over and above other potentially competing rights. The fundamental principle underlying qualified Convention rights is that they are equal and must be weighed against each other. We do not believe that a case has been made out that freedom of speech should prevail over other rights in a selective manner. Unless the Government is prepared to reconsider clause 4, we would like to see it removed from the Bill (see Annex, Amendment 22).

It does not appear that the practical impact of clause 6 is likely to be significant. However, in those rare cases where the courts may currently consider that there is an individual right at stake which is so important that it outweighs the importance of reducing risk to the public, this clause could prevent the court reaching a decision which it considers consistent with the Convention. A clause that seeks to bind the hands of the courts when assessing whether an individual’s rights have been violated is inherently problematic. The courts need to be able to conduct a genuine proportionality assessment or they risk being unable to adequately enforce human rights. Unless the Government is prepared to reconsider clause 6, we would like to see it removed from the Bill (see Annex, Amendment 23).

Clause 8 is an attempt to restrain the courts from finding that deportation legislation is incompatible with Article 8. The scope is narrow, as it does not apply to challenges to individual deportation decisions. It is designed to make it difficult for the courts to find that deportation legislation is incompatible with Article 8 in all but the rarest of cases. This clause may signal the Government’s intention to amend the deportation regime in a way which is highly restrictive of Article 8 rights.

If the Government legislates to restrict the application of Article 8 rights even further than the current regime, clause 8 will make it extremely difficult for an individual to successfully challenge deportation laws in the domestic courts based on incompatibility with Article 8. This is because the threshold for finding that a deportation provision is incompatible is extraordinarily high, requiring that the provision would result in “manifest” and “extreme” harm to a limited category of persons. Although states are given a wide margin of appreciation in relation to deportation laws and the balance between the public interest and individual rights to private and family life, the extreme restrictions placed on the courts by clause 8 would almost extinguish Article 8 rights entirely.

As clause 8 precludes any proper balancing exercise to be undertaken by the courts, this clause is likely to be incompatible with the procedural requirements of Article

The effect of clause 20(3) would be to preclude the domestic courts from applying the factors set out by the European Court of Human Rights in case of Othman, which ensures that deportation assurances are not taken at face value but rather are subject to a rigorous assessment of sufficiency by the courts. However, the prohibition on the courts would only apply in relation to fair trial challenges to deportation. It is 118 Legislative Scrutiny: Bill of Rights Bill not clear why the Government has decided to prohibit the assessment of deportation assurances only in the case of Article 6, particularly given that most deportation with assurances cases appear to concern the risk of treatment contrary to Article

Clause 9 has no obvious legal significance. Its inclusion appears to be largely symbolic and arguably a signal to Strasbourg of the importance of jury trials within our system. It is unlikely that jury trials in the UK would fall foul of Article 6 as long as procedural safeguards remain in place. We consider clause 9 to be unnecessary. (Paragraph 301) Human rights in the devolved nations

The HRA plays an important role in the constitutional arrangements of the devolved nations and has contributed to the embedding of a human rights culture. We have heard that there is strong support for the HRA in the devolved nations and an appetite for the strengthening of human rights. Given the significant impacts on the devolved settlements, the Government should not pursue reform of the HRA without the consent of the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly. (Paragraph 317) Our Concluding Views

If this Bill is to proceed, the short title should be amended in clause 41 to better describe the purpose and contents of the Bill (see Annex, Amendment 26). We suggest the title of the Bill should be the ‘European Convention on Human Rights (Domestic Application) Act’, as the Bill seeks primarily to determine how the Convention is interpreted and applied in domestic law.

The Government should not progress the Bill in its current form through Parliament. (Paragraph 339) Legislative Scrutiny: Bill of Rights Bill 119