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UPDATE
Chapter 4, 4.12 The Future
This continues the update of March 2022.
The update of March 2022 described how the Trade and Cooperation Agreement between the UK and the EU required the UK to continue to adhere to international human rights law. It discussed the Independent Human Rights Act Review (the Gross Review) into the workings of the HRA (December 2021) and it examined the government’s ‘Consultation’ on human rights reform and the main issues of concern for the government.
In June 2022 Parliament gave the first reading to the Bill of Rights Bill which contains the government’s legislative proposals following the Review and Consultation.
At the time of writing this Update (July 2022) a new Prime Minister is being chosen. The future of these proposals, whether they are enacted, weakened, strengthened or simply withdrawn will depend on the political judgement of whoever is chosen.
The point of this update, therefore, is not to give a detailed consideration of what is proposed, since this may change, but to identify the bill’s major provisions as they stand on being introduced to Parliament.
1. The Human Right Act will be repealed.
The ‘Bill of Rights 2022’ (BoR), as it will be known, will, if enacted, repeal the Human Rights Act 1998 (HRA) and replace it as the statutory basis for human rights protection in the United Kingdom. Repealing the HRA goes further than was signalled in the Conservative Manifesto of 2019 (which referred just to an ‘update’) and goes outside the assumptions of the Gross Review. Nevertheless, the Consultation was clear that there was an intention to ‘revise and replace’ the HRA.
The main thrust of the bill, it seems, is to seek to strengthen the role of the UK courts in the interpretation and application of Convention rights and, also, to strengthen the position of Parliament regarding, in particular, any interpretations of Convention rights that seek to expand the entitlements that any particular Convention right protects.
2. But the UK will remain a party to the Convention
But it is important to note that these reforms will not be radical in the sense of removing the UK from the ultimate supervision of the Strasbourg court or of introducing different rights, or different texts to rights, from those in the ECHR.
- the UK will continue to be a High Contracting Party to the
European Convention and so it will remain bound, at international
law, to abide by the responsibilities in Article 1 to secure
Convention rights for everyone in the UK in domestic law; from
which follows the obligations to allow persons in the UK to take a
case to Strasbourg and to abide by the decisions of the European
Court of Human Rights which apply to the UK (see 5th
edition Chapter 2, 2.4.2);
and - the rights to be given legal effect through the BoR have the same text as in the ECHR and as in Schedule 1 of the HRA (see 5th edition Chapter 4, 4.2)
3. The BoR 2022 will change the circumstances when the courts can apply Convention rights.
Under the HRA, UK courts have two reasons for interpreting and applying Convention rights. One is in order to seek, so far as possible, ways of interpreting legislation so that it can only authorise actions which are compatible with Convention rights (HRA s3, see 5th edition Chapter 4, 4.4); the other is to enforce the duty on public authorities to act compatibly with Convention rights (HRA s6, see 5th edition Chapter 4, 4.5).
A major point is that under the BoR there is no replacement for the first of these, section 3.
The courts will lose, therefore, the power, to, if possible, strain the clear language of a statute in order to ensure that it works compatibly with the Convention; in effect, to give a meaning to a statute that was probably outside the intention of Parliament at the time of enactment (see 5th edition Chapter 4, 4.4.5-4.4.7.) Instead, in relation to statutory interpretation, UK courts will revert to the position they were in before HRA. There are four main points to this (see 5th edition Chapter 3, 3.5.2):
- the courts will interpret and apply legislation on the basis of a presumption that Parliament intended to legislate compatibly with the UK’s international obligations – and these include protecting the rights in the ECHR (see 5th edition Chapter 3, especially 3.3). This is a presumption of statutory interpretation, however, and it will not apply when the meaning of statutory provision is unambiguous in the sense that under the normal principles of statutory interpretation, the ‘true’ meaning of the statutory provision is clearly incompatible.
- In relation to secondary legislation, UK courts have developed the principle of ‘legality’ – regulations, etc, that are incompatible with fundamental rights need to have express authorisation in the primary Act; the regulator cannot rely on wide-ranging general authority in the primary Act.
- In judicial review the legality of an administrative action which interferes with Convention rights will be tested by particularly intense scrutiny.
- Over recent decades, and clearly influenced by international human rights law, including the ECHR, common law ‘fundamental’ and ‘constitutional’ rights have developed so that their reach is often similar to that of the Convention (see 5th edition Chapter 3, especially 3.5.2).
The significance of the non-replacement of section 3 is unclear. Under the Bill of Rights, Convention rights will only come into play in respect of statutory words that are unclear, imprecise or ambiguous and in theory this is a higher threshold than the ‘so far as is possible’ threshold of section 3. Whether statutory wording is unclear or ambiguous, etc, is a matter of judicial judgement and it may well be that the gap between the discretion judges will have to apply Convention rights under the Bill of Rights and that which they currently have under the ‘possible’ test in the HRA, may not be considerable.
Nevertheless, the Bill of Rights retains the enforceable obligation on ‘public authorities’ to act compatibly with Convention rights subject to the important exception where they are putting an incompatible statute into effect (see clause 12 and 5th edition Chapter 4, 4.5) and, of course, whether a statute is compatible or not will be affected by the non-replacement of section 3. In addition, clause 15 will introduce a new permission stage for cases brought against public authorities. The power to issue a declaration of incompatibility remains where a court cannot interpret away the incompatibility; as does the power of the Secretary of State to remedy an incompatibility by a remedial order (see 5th edition Chapter 4. 4.4.3-4.4.4). Issues such as standing to bring a case against a public authority, procedure and remedies remain broadly similar as under the HRA (see generally 5th edition Chapter 5), although in relation to the award of damages, courts will be required to give ‘great weight’ to the impact an award will have on the public authority.
In summary: courts will still be able to interpret a statutory provision so that it only authorises actions which are compatible with Convention rights, but only where its meaning is unclear, ambiguous, etc. If compatibility cannot be found (because the statutory provision unambiguously breaches Convention rights) the courts will have to enforce the statute and accept that a public authority giving effect to the statute is acting lawfully. The court will have discretion to return the matter to the executive and Parliament by means of a declaration of incompatibility.
4. The meaning and scope of Convention rights under the BoR 2022
The Bill of Rights may, as described in the previous section, restrict the circumstances in which the UK courts can limit the meaning of statutes and the actions of public authorities against the standard of Convention rights.
But a great deal of the proposed Bill is about how UK courts are empowered to establish that standard in the first place. Much of the Bill concerns the legal meaning that UK courts can give to Convention rights – in other words, about how the UK courts can identify the scope and extent of the protection a Convention right provides.
As suggested in the Update of March 2022, a primary aim of reform is to place greater authority with domestic courts, particularly the Supreme Court, over the interpretation and application of human rights and to try to ensure that, where human rights law seems to be requiring significant actions or decisions by the authorities, there is some degree of retrieval of the powers of the executive exercising its duties under domestic law as it sees fit and in a way that is accountable to Parliament. The context is what the government, rightly or wrongly, sees as an expansive approach to human rights (through the ‘living instrument’ doctrine, see 5th edition, Chapter 6, 6.1.6, and the development of ‘positive obligations’, see 5th edition, Chapter 6, 6.6,) which, improperly in its view, alters the balance between human rights which are, as it were, outside the realm of democratic decision taking, and human interests which are the proper subject of the democratic political process.
There is, therefore, much in the BoR which aims to control the way UK courts interpret Convention rights and to undermine a direct translation of new, ‘expansive’ readings of Convention rights made by Strasbourg into the law of the United Kingdom. It makes it clear that it is the UK Supreme Court which is to have the last word on this in the United Kingdom.
Section 2 of the HRA currently requires UK courts to ‘take into account’ Strasbourg interpretations of Convention rights and has, subject to important and perhaps increasing exceptions, sought to mirror in the UK the protection of rights given in Strasbourg (5th edition, Chapter 4, 4.3.2-4.3.6.) The BoR 2022 will replace this section with a range of quite complex provisions aimed, broadly speaking, at limiting the power of the courts, on their own authority, to develop the protection offered by Convention rights.
First, interpretative methods. A UK court is to have ‘particular regard’ to the text of a Convention right and also the preparatory work (travaux preparatoires see 5th edition, Chapter 6, 6.1.4) despite the fact that the latter have only a limited role under the way the Strasbourg interprets the Convention (see 5th edition, Chapter 6, 6.1.6); clause 3.
Second, expanding the reach of Convention rights. UK courts will be limited in their ability to ‘expand’ the scope and meaning of Convention rights. A UK court may adopt an interpretation of a Convention right that is different from Strasbourg, but this may not be an interpretation which is a more ‘expansive’ view of the scope of a Convention right than currently laid down by Strasbourg unless it has no doubt that the same more expansive view would be adopted in Strasbourg, should the issue need to be decided by that court.
But there is an important exception to this qualified ban on ‘expansive’ interpretations in the context of freedom of expression (in Article 10 ECHR, see 5th edition Chapter 17). Courts must give ‘great weight’ to freedom of expression and this might, perhaps, move the UK courts towards a more expansive protection for speech in contexts such as ‘hate speech’ (see 5th edition Chapter 17, 17.9.3). Exactly what the expression ‘great weight’ means and why it necessarily involves giving lesser weight to, for instance, the rights of others in the free speech context, will be a matter for the courts to work out as they struggle with the text of the BoR 2022. The special status of freedom of expression found in HRA section 12 is continued in Clause 22 (see 5th edition, Chapter 22, 22.4).
Third, positive obligations. Clause 5 of the BoR 2022 will restrict UK courts in their ability to interpret Convention rights in ways that impose new ‘positive obligations’ on the authorities; a positive obligation is defined as an ‘obligation to act’ (see also 5th edition Chapter 6, 6.6). Clause 5 (1) simply bans UK courts from developing new positive obligations. It must be noted, of course, that it is seldom easy to distinguish a positive from a negative obligation and most Convention rights require a combination of both to be given effect.
In terms of positive obligations which are already part of the way the Convention has developed, any new application is to be limited by reference to a range of factors to which the courts must give ‘great weight’ - protecting public authorities in the way they choose to exercise their discretion, not affecting the operation of primary legislation, and by reference to two specific areas of concern: the standards to be imposed on police investigations of serious crime and the positive obligation to protect life in the context of protecting criminals from each other.
Fourth, balancing rights and deference. In deciding whether a statutory provision is compatible with Convention rights, a court may be faced with a range of possibilities as to the balancing of the various interests and factors involved (e.g. if a statutory provision may interfere with ‘private life’ under Article 8(1), the question of whether that interference is justified (under Article 8(2)) will involve balancing the interests protected by the right with a range of factors, such as national security or public safety, which are capable of justifying the interference). Clause 7, embodying the idea of giving Parliament a greater role, will require the courts, broadly speaking, to defer to (to accept) the way Parliament has done that balancing (see 5th edition, Chapter 4, 4.6.)
Fifth, ignoring Strasbourg ‘interim measures’.
Under its Rules of Court, the Strasbourg court can issue interim measures which, for example, may require national authorities to delay deportation until their right to deport has been legally confirmed (see 5th edition, Chapter 2, 2.7.3) This was done, for instance, the case of Abu Qatada and it has recently (June 2022) been used to seek to prevent the execution of British prisoners in the Russian backed part of Ukraine. However, its use to prevent the deportation of asylum seekers to Rwanda was seen as a direct intervention which undermined government policy. In response, clause 24 will require that ‘no account’ be taken of these measures.
5. Particular points.
As well as seeking to limit the expansion of human rights law generally, the BoR 2022 contains some specific provisions which reflect some areas of concern behind the criticism of human rights and also where the government wishes to see protection strengthened.
Deportation. In particular, clause 8 severely restricts the power of a court to accept a claim from a foreign offender that the statute under which the deportation order was made means that his or her deportation will breach article 8 (the right to private and family life – see 5the edition Chapter 15, 15.10.7). This argument will, under the BoR, only succeed in relation to the most severe hardships. There is a similar restriction on the Convention rights of deportees in that only the most severe claims that a fair hearing (Article 6) is not guaranteed in the receiving country, will be able to succeed (Clause 20; see 5th edition Chapter 12, 12.16.)
Jury trial. Clause 9 seeks to cement the right to jury trial, as allowed in English law, into the scope of the right to a fair trial (Article 6).
Disclosure of journalistic sources. Clause 21 aims to strengthen the power of a journalist to resist legal attempts to make him or her disclose their sources.
6. The overseas jurisdiction of the Convention and overseas military operations.
The HRA, mirroring the ECHR, allows Convention rights to be enforced in respect of actions by UK public authorities which take place anywhere abroad (5th edition, Chapter 2, 2.4.5 and Chapter 4, 4.11.3). This will continue under the BoR 2022, in so far as it involves a continuation rather than an expansion of Convention rights. But the BoR will introduce a major exception. Clause 14 introduces a wide-ranging provision aimed at preventing Convention cases being brought in respect of the British military actions overseas – such as in Iraq or Afghanistan (as was brought, for example, in R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, 5th edition ibid). It replaces section 7A HRA, inserted in 2021, which sought to introduce limitation provisions on the bringing of human rights claims in relation to the actions of the armed forces overseas. The ban in Clause 14 will not apply to criminal proceedings. It is worth noting, however, that criminal proceedings may themselves be time limited under the provisions of the Overseas Operations (Service Personnel and Veterans) Act 2021 – though this Act does not apply to various offences including genocide, crimes against humanity and war crimes. Perhaps, therefore, the main impact of Clause 14 will be in restricting civil cases, such as a new Al Skeini where the question is whether an investigation into killings alleged against British forces overseas satisfies the requirements of the procedural limb of Article 2 (see 5th edition, Chapter 8, 8.5).
6. Other provisions
There are other provisions on matters such as derogations, reservations which broadly replicate similar provisions in the HRA.
CONCLUSION.
These are controversial proposals which have been widely criticised. Criticism focusses on such issues as the procedure by which this major constitutional change will be introduced which, critics say, does not give opportunity for effective and inclusive consideration; the claim that the Bill will reduce effective judicial scrutiny of the executive, especially against international legal standards embodied in the Strasbourg Court, and because it is thought that some of its provisions weaken the protection of unpopular minorities, such as prisoners and deportees, which it is the purpose of human rights to protect.
It is a more radical set of proposals than were, perhaps anticipated, and, if enacted, will significantly alter the structure of human rights law protection in the United Kingdom.
But - the United Kingdom remains a signatory of the ECHR, and, consequently, has agreed not to ‘hinder in anyway’ the right of individual petition (see 5th edition, chapter 2, 2.5.2) we can, perhaps, expect a rise in Strasbourg cases and adverse decisions affecting the United Kingdom. The fact that there is no equivalent in the BoR 2022 to section 11 HRA, which maintains the effectiveness of all other rights enjoyed in the UK, is unlikely to make any difference.