5 ways the bill of rights could affect our everyday freedoms
We have grave concerns about the negative impact the Bill of Rights Bill will have on the rule of law, access to justice and a person’s ability to protect their rights. We discuss the impact of the bill on the human rights protections we currently have.
It will repeal and replace the Human Rights Act 1998 (HRA), but will not remove the UK as a signatory to the European Convention on Human Rights.
We agree with the Independent Human Rights Act Review – a body of judges and experts commissioned by government – and the majority of those who responded to the government’s consultation, that there is no case for the sweeping reforms proposed.
So, what will the bill actually do?
1. It will create inconsistencies with convention rights – leading to more cases going to Strasbourg
The bill removes the requirement for courts to consider how rights have been interpreted by the European Court of Human Rights (ECtHR) when reaching a decision.
The government states that this is necessary for courts to be able to give greater weight to national law and the national context.
However, evidence shows they already give great weight to this and do not treat ECtHR jurisprudence as binding.
If UK courts do not even consider how convention rights are developing in other countries, our human rights laws could become not only inconsistent with those in the rest of Europe, but also less clear and transparent.
As well as placing people in the UK at a disadvantage compared with their European counterparts, this would cause difficulties for those that operate across borders such as businesses – ultimately harming our national competitiveness.
To what extent will the bill of rights ‘bring decisions back’ to the UK?
Many of the changes will leave UK courts unable to play their usual role in addressing incompatibilities between UK law and the convention.
This makes it almost inevitable that more cases will therefore have to go to the ECtHR.
This is the opposite of the government’s intention. It would also be more expensive for all parties and could result in damage to the UK’s international reputation.
2. It creates delays and limits the role of the courts in protecting rights
One of the most significant changes made is the removal of the section 3 HRA requirement for courts to interpret legislation compatibly with convention rights.
Section 3 is one of the core parts of the HRA framework.
It has played a significant role in ensuring that laws are applied in a way that is compatible with human rights in the first place and that courts can resolve issues quickly when they do arise.
Without it, courts will be forced to issue more declarations of incompatibility, which refers the matter back to government and parliament to resolve through legislation.
This will increase burdens on parliamentary time making long delays likely, during which the violation of rights would be ongoing.
What happens to existing judgments?
There is also a question over what happens to the existing judgments courts have made using section 3, as one reading of the bill suggests these will all cease to have legal force overnight.
The more likely interpretation is that they will still be applicable for now, but will be vulnerable to being overturned in future cases.
Either way, there will be a lot of confusion for courts, solicitors and everyone who comes into contact with human rights law about whether, or how far, these judgments will apply.
The secretary of state’s discretion
There is also a power created for the secretary of state to ‘save’ the effect of some of the existing section 3 judgments – but this gives them a broad and perhaps unprecedented discretion over rights issues.
It would make a minister (rather than parliament) the sole determiner of which protections should be kept.
3. It will prevent courts from ordering the government to take positive steps to protect rights
All human rights contain two types of obligations that public bodies (including governments) must comply with:
- ‘negative’ obligations, which require them to respect or refrain from violating rights, and
- ‘positive’ obligations, which require them to take steps to fulfil a right
Positive obligations have been important in raising human rights standards and ensuring those that have been failed by public bodies can access justice.
They’ve been used to secure improvements in areas such as:
- violence against women and girls
- disability services
- investigations of deaths in state custody
- modern slavery
However, the bill would prevent courts from imposing any new positive obligations on a public body – leaving us with only half the protections for human rights that other countries who are signed up to the convention have.
This again would likely see more people having to go to the ECtHR to protect their rights.
4. It adds an extra hurdle to human rights cases – making it harder to access justice
The bill will introduce an additional permission stage for human rights cases.
In the first instance, this is unnecessary as it duplicates mechanisms that already exist for many cases, such as the permission stage which is already part of judicial review.
It also introduces a test which risks creating an undue barrier to accessing the courts.
A claimant will have to prove they have or would suffer “significant disadvantage” as a result of a human rights violation before being allowed to proceed with their claim.
“Significant disadvantage” will be given the same meaning used by the ECtHR in their own admissibility stages.
It's inappropriate for the domestic courts to use the same test as the international courts.
The latter are only supposed to be a ‘safety net’, whereas domestic courts are presumed to look at a far wider range of cases.
This new threshold could therefore result in routine violations going unchecked, in effect creating an ‘acceptable’ class of human rights abuses.
5. It prevents impartial proportionality assessments
In the majority of human rights cases there will be competing issues or interests that need to be carefully balanced against each other.
Courts do this through ‘proportionality’ assessments.
The bill seeks to limit this discretion by requiring courts to assume that parliament, in passing any piece of legislation, must have been satisfied that the balance of issues and interests contained in that legislation was correctly struck.
This is despite parliament not being tasked with looking at the facts of individual cases – an exercise that might show the effects of the legislation in a different light.
- preventing people from enforcing their rights
- blocking the constitutional role of the courts in upholding these, and
- significantly reducing government accountability
The government says this measure is supposed to preserve parliamentary sovereignty, but we do not believe this has been shown to be necessary.
Judges are experts in applying the law to the facts of individual cases in an impartial way, and the evidence shows that they are careful to respect the democratic legitimacy of parliament.