22nd June 2022
The new Bill of Rights Bill 2022 has been published.
On the face of it, this is a very significant move.
The Bill even tells us that when enacted it will be known as the “Bill of Rights 2022”.
Note this means it will now be one of a small group of statutes which will not be known as Blah Blah Act Date.
No, this legislation demands comparison with the (actual) Bill of Rights of 1688.
Portentous stuff.
But.
In broad terms, this new legislation makes no real difference to the Human Rights Act 1998.
For example, schedule one to the Human Rights Act 1998 sets out the articles of the European Convention of Human Rights:
And Schedule 1 to the new legislation also sets out the articles of the European Convention of Human Rights:
The proposed Bill of Rights does not create any new ‘British’ rights instead of the European Convention.
The fundamental purpose of the 1998 Act and the new bill are the same: to provide a basis in domestic law for giving effect to the convention rights in the European Convention.
And the key operative provision is the same.
Here is section 6 of the 1998 Act:
And here is clause 12 of the proposed bill:
*
So.
Both the 1998 Act and the new legislation place the rights under the European Convention of Human Rights into English law by means of a schedule.
And the 1998 Act and the new legislation provide – in identical language – that public bodies must comply with those rights.
Even the defintion of “Convention rights” are the same.
The 1998 Act:
The new Bill:
*
You may wonder what is the point of an entirely new enactment that does, at the fundamental level, exactly the same as the legislation it is supposed to replace?
And the answer to that is there is no real point.
The new legislation does make a difference in respect of how the convention rights can be enforced in certain situations.
The overall effect – odd for legislation which will be called ‘The Bill of Rights”, if you think about it – is to make it harder practically for convention rights to be enforced.
But that is done by the means of various processes and other tinkering – but nothing which warrants such a legislative overhaul.
Those new provisions can be looked in detail at as the bill proceeds.
But in respect of the fundamentals this new bill gives effect to the same Convention rights with the same key obligation and with the same defintion of convention rights.
The rest is detail and symbolism.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
So are we to assume nothing really changes. Raab trying to sell it to the electorate as turning our back on all things European to catch their right leaning followers.
Peter Bone MP asked the Secretary of State whether, if the new Bill failed to be approved, the UK would withdraw from the Convention. His is not a lone voice.
Even if the UK withdrew from the ECHR, the HRA would still apply domestically (the ECHR rights are in Schedule 1 of the Act). It seems very unlikely that if the Government failed to pass this bill that it would be able to somehow pass a standalone repeal of the HRA.
Did he get an answer?
I’d love Peter Bone to spell out exactly what’s wrong with the ECHR. He couldn’t. I wonder if he’s even read it.
Why is he so keen for the UK to join Russia and Belarus in this action?
Smoke and mirrors and something for the ineffectual Dominic Raab to take credit for, by the sounds of it.
But the Tory party can appear to be effective – while being ineffectual.
Plus ça change.
So true.
I had to go back and read this one twice!
The civil contingencies act can be used to suspend any law except itself and the human rights act. It can be used to suspend this bill of rights, so death penalties can be introduced in an emergency if this passes without the civil contingencies act being updated in schedule 5 of this thing.
Interesting… I wonder. Is this the real intent or is it a mistake? I hope that it’s the latter and, either way, that it gets corrected.
(Bonus points if the HoL corrects it and the Govt tries but fails to throw out the HoL amendments in one go then goes on to fail to remove them in the more usual manner.)
The Civil Contingencies Act itself states that it cannot be used to create an offense that has a punishment greater than 3 months imprisonment – so it cannot be used to bring in the death penalty.
interesting point, however the exclusion in the CCA is there for a reason, and this process is sidestepping around that to introduce a suspendable Bill of Rights.
We have a situation where the government is telling some people it is exactly the same as before, whilst they tell others that it is completely different to the way it was. The main difference that I can see that couldn’t have been achieved by an amendment to the HRA is this evasion of the limitation in the Civil Contingencies act.
‘The overall effect – odd for legislation which will be called ‘The Bill of Rights”, if you think about it – is to make it harder practically for convention rights to be enforced.’
Isn’t this the point? Protecting themselves while restricting access to justice.
Yes – I believe you are right.
What a waste of time and energy on the government’s part. All to catch a headline after last week. But watch out for last minute ‘minor’ amendments.
But.
“enforcement”, “processes”, “details”
Don’t these things matter?
And what does the Bill have to say about them?
Here is a link to the gov.uk page which explains what the government thinks it is doing.
* https://www.gov.uk/government/publications/bill-of-rights-bill-documents
And here is a link to the Bill of Rights Bill (stupid name) at parliament.uk.
* https://bills.parliament.uk/bills/3227
As you say, the substantive rights are the same, but the government is trying to tip the balance in various places by requiring the courts to give “great weight” or “greatest possible weight” for things it likes, and putting hurdles in other places for things it does not, rather than trusting the court to reach a proper conclusion on where the balance should be struck in a particular case before it.
If this Bill becomes law, it will become easier for the government (particularly ministers making rules and regulations) and other UK public bodies to breach rights protected by the Convention, and more difficult and more expensive for affected individuals to seek redress for the infringement of their rights.
There is a significant risk that domestic law and UK courts will not be able to protect rights recognised by the ECHR, or give adequate redress for breaches. So there will be more situations when cases have to be taken to the court in Strasbourg, where the UK may be found in breach of its treaty obligations, rather than the cases being decided in UK courts.
There is a weird echo of originalist lines of thought on the US constitution – reference to “elastic interpretations that go way beyond anything that the architects of the Convention had in mind” and ECHR case law “extended beyond the intent of the Convention’s drafters”. Putting to one side the question of how much the thoughts and intentions of Parliamentary Counsel or government ministers or MPs influence the way a UK court approaches the interpretation of a domestic statute, the European Court has itself determined that the Convention is not frozen in time in the 1950s, but rather it is a “living instrument” that needs to recognise where society is today. Dominic Raab can stamp his foot as much as he likes, but UK domestic law is not going to change that.
For some reason this clip from one of the earlier episodes of Red Dwarf comes to mind.
I can’t possibly think why…
The Human Rights Act 1998 (“HRA”) was intended to make it cheaper and quicker for people to enforce their rights under the ECHR (“Convention Rights”). This did not arise in a vacuum. Prior to the HRA, the UK had the second worst record, after Italy, in cases before the ECtHR.
If a country is signed up to the ECHR it is, by necessity, also signed up to the propositions that: (i) a person seeking to enforce their Convention Rights, against you, before the ECtHR, has to exhaust all domestic remedies first (Art. 35(1) i.e. take their case to the end of any domestic appeal process first); and, (ii) a final judgment from the ECtHR, in a case in which you are a party, is binding on you (Art. 46).
It therefore made sense to oblige domestic Judges to: (i) “take account” of any ECtHR decisions relevant to any Convention Right issue they have to resolve in a case before them (s.2 HRA); and, (ii) interpet any domestic legislation “so far as it is possible to” in a way which it is compatible with Convention Rights.
Put simply, if you could tell from prior ECtHR decisions that the UK was going lose at the very end of the process (i.e. before the ECtHR), a lot of time and money can be saved, for everyone, by allowing domestic courts to either say so earlier or interpret their way around the apparent problem.
The cummulative effect of the amendments to the HRA approach in this new Bill would be to materially increase the number of Convention Rights cases the UK ultimately lose (i.e. before the ECtHR). Making it take longer and be more expensive for an individual to enforce their human rights against the state shouldn’t be any Government’s policy objective.
But what about sovereignty? If by sovereignty, people mean UK Courts (as opposed to the UK as a party in proceedings brought against it) should not be ‘subservient’ to the ECtHR. They already aren’t. “Take account of” in s.2 of the HRA doesn’t mean domestic courts are bound to apply relevant decisions of the ECtHR. It just means they should follow those decisions unless they appear to have been wrongly decided (Pinnock [2011] UKSC 6 at [48]).
If by sovereignty, people mean that s.3 of the HRA undermines parliamentary sovereignty because judges are “re-writing” legislation, there may be something to that. The balance between parliamentary sovereignty and efficient enforcement of human rights may be tipped too far towards the latter. You could repeal s.3 (or just amend it by changing “so far as possible” to “where reasonable”). But, ultimately, repealing or amending s.3 doesn’t really get you anwhere. It will just result in an increase in the number of declarations of incompatability issued by domestic Courts. If you then make it harder to get a declaration of incompatability, as this new Bill seeks to, you just increase the number of adverse final judgments by the ECtHR.
At every turn you come back to the same point. You can be in the ECHR but that means it is not just parliament that gets to say what is a breach of human rights. If that is the case it makes sense to incorporate the ECHR into domestic law in a way that minimises the number of cases that need to go to the ECtHR.
Alternatively, you can be outside the ECHR, which means parliament is boss. However, you can’t do that without heaping opprobium on yourself as a country and, more to the point, breaching a number of international agreements (including the Trade and Cooperation Agreement with the EU and the Good Friday Agreement).
Quite right, James. The whole point of the HRA was to make it less likely that human rights would be breached in the UK, and to provide a route to a remedy in the UK courts if they were. For all its seeming similarity to the HRA, this Bill does the opposite.
Some masterful analysis of what would change and what would not from a public law viewpoint by Mark Elliott over here: https://publiclawforeveryone.com/2022/06/22/the-uks-new-bill-of-rights/
It might seem farcical wasting parliamentary time, effort and money on getting a bill through parliament if there is no appreciable difference at the end of it other than to satisfy the prejudices of their supporters, but then again this is the same government that tries to deport one set of refugees to an unsafe country like Rwanda only to accept others coming from that same country.
All that time, money and misery wasted on what seems like little more than a refugee swap. By comparison coming up with a bill that appears to change nothing seems positively sane by comparison.
Can someone put in an FOI request for the risk assessment pertaining to the civil servants and lawyers who drafted this? I want to be sure that adequate control measures were put in place to ensure their eyes didn’t roll out of their heads.
Virually everything this government appears to do is just for appearance. All promises – no action or delivery. Hence Peter Bone’s contribution is not to be taken lightly, nor is the Home Secretary’s view on capital punishment.
The Law Society doesn’t seem as sanguine as you do………..
I’m deeply suspicious of anything this government says or does in almost all areas but especially in matters touching the power of the Executive. I look forward to your more informed comments in future posts – asap please.
As predicted this Bill doesn’t change anything substantial. It repeals the HRA to appease those who irrationally hated it and replaces it with almost exactly the same thing with a new name. Yet it seeks to limit access to the very rights it supposedly protects. Worst of all it makes it much harder to enforce those rights against public bodies, the very thing which is most useful in preventing repressive actions by said bodies. It gives ministers, not judges, the power to decide which rulings apply and which don’t.
This is very undemocratic and arbitrary injustice. Shocking actions from a government with a recent history of enacting shockingly repressive laws.
Sometimes just sometimes bills are introduced to do just what it says on the tin. It’s quite apparent that when it comes to human rights it wants the UK court to be supreme.
I guess most liberals will, rightly be disturbed or disgusted by this approach – equally, I can see many Conservatives quite liking the approach.
Is it true that ECHR judges don’t need to hold legal qualifications as they are elected. ?
The UK Supreme Court is already supreme as regards UK domestic law. (As was the House of Lords before it. Raab’s suggestion that a “supreme court” needs to be supreme is simplistic casusitry. Until recently, we had a “Supreme Court of Judicature” created in the 1880s, and that was much less “supreme”.)
This is one of the examples of the Bill Bill “clarifying” and “affirming” things that are already plain and not in doubt, such as clause 9 recognising trial by jury as a means to securing a fair trial, but only when the law provides for it and not when it doesn’t.
No. Where does that suggestion come from?
Here are the judges of the ECHR. https://www.echr.coe.int/Pages/home.aspx?p=court/judges&c
Click for their brief CVs. Every single one has legal training and experience, often very lengthy experience at a senior level.
And here are the selection criteria and process. https://pace.coe.int/en/pages/committee-30/AS-CDH
The court has a judge from each state that is a member of the Council of Europe. Three candidates for the position are proposed by each state. Each candidate is required to “be of high moral character and possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”. Their qualifications are checked by a committee with legal experience, which can make recommendations about which is best qualified (or can reject a state’s candidates and ask for more to be proposed) and then one of the three is selected by the Assembly of the Council of Europe. The current UK judge is a barrister of approaching 30 years call, Tim Eicke QC.
“Until recently, we had a “Supreme Court of Judicature” created in the 1880s, and that was much less “supreme”.”
I was a solicitor of that there ‘supreme court’, as I believe were you…
Correcting myself, on rechecking, I think the English “Supreme Court of Judicature” was created in the 1870s, bringing together the (until then separate) common law courts with the courts of equity, along with the new single Court of Appeal.
The original proposal also included abolishing the judicial functions of the House of Lords but that did not happen, prefiguring the unrealised aspiration set out in the preamble to the Parliament Act 1911 to replace the House of Lords with a Second Chamber constituted on a popular instead of hereditary basis.
With a change of government from Liberal to Conservative in 1874 (Gladstone to Disraeli), the House of Lords was retained as the final court of appeal, but supplemented by the law lords.
The 1870 to 1890s must have been an interesting time, with Supreme Court of Judicature Acts coming along almost every other year, plus several Appellate Jurisdiction Acts. With enough parliamentary time and political will to work away at this over a few decades until we achieved a structure for the senior courts that has more or less stuck since then.
The “Supreme Court of Judicature” was renamed the “Supreme Court of England and Wales” in 1981, and became the “Senior Courts of England and Wales” in 2009, to avoid confusion with the new “Supreme Court of the United Kingdom”.
ARTICLE 21
Criteria for office
1. The judges shall be of high moral character and must either
possess the qualifications required for appointment to high judicial
office or be jurisconsults of recognised competence.
(…)
The HRA already put the ECHR into UK law making appeal to the Court mostly unnecessary. This Bill doesn’t change this as David’s blog pointed out. Have you read it?
As for the judges, you are clutching at non-existent straws. They wouldn’t be candidates for election to the Court if they weren’t legally qualified. No different to US judges and law officers being elected. That doesn’t mean they can be unqualified either.
In contrast, the UK Attorney General didn’t pass bar exams in the UK and only became a QC when she was appointed as AG. She isn’t qualified or experienced to earn the title of QC. Is that OK with you?
One interesting question I have yet to see addressed is whether this new Bill of Rights meets the United Kingdom’s requirement under the Good Friday Agreement to have access to the courts in Northern Ireland in respect of ECHR and remedies for breaches thereof. The fact that the BoR does surgery to how certain rights should be interpreted (if not in line with the international obligations on UK) would seem to throw this into doubt.
I suspect even Raab is not so stupid as to put up a radically different BOR. He will approach changes stealthily. But perhaps he has in mind requiring all requests for an injunction pass through a big oak front door to which Mr Raab has the key. By the time protesters have been denied access and made requests to European courts the plane has flown.
An idea that will probably only work once but hey ho.
If the point is to nobble wholly nationally based judges directly and indirectly, then surely the content ceases to matter as much. Populist leaders like Trump or Johnson are not about changing the legal framework as much as ensuring that it doesn’t apply to them, but can still be used against their opponents. The outward appearance of “nothing to see here” may even help them bring about the gradual erosion of a decent system aided and abetted by sympathetic media and popular resentment of liberal elites. The alternative explanation that all this is simply a charade to fool a jingoistic constituency is possible but risky to rely on.
This reaction seems quite out of character to me. Usually you’d be the first to agree that how stuff gets enforced is often the heart of the matter. That is essentially the basis for your opposition to a codified (supreme) constitution.
When it comes to rights, enforcement – who can actually rely on these rights? who defines what their scope is? etc – is 90% of the meat. Messing with that *is* messing with people’s rights. If you write a statute that, in section 1, gives people the right to wear pink on Tuesdays, and in section 2 makes it utterly impossible for them to enforce that right, the net effect of what you’ve done is exactly zero.
Another example, the Dutch constitution starts with a nice chapter full of rights (art. 1 – 23) that nobody can rely on against parliament (because that’s what it says in art. 120), and is therefore entirely dead letter. Nobody would notice if the entire first chapter of the constitution was repealed tomorrow.
(Of course in the Netherlands the ECHR has direct effect, and can be invoked in any legal proceeding as a reason why domestic law should be disapplied, so there’s no reason to worry about the state of the rule of law in the Netherlands. But the bill of rights that’s in the constitution adds exactly nothing to anyone’s liberty.)
I am afraid it is fully within my usual approach – before getting alarmed about something, know what that thing is. And here it is as important to note what the government is not proposing doing, as well as what it is proposing.
In view of the truism that justice delayed is justice denied I am not so sanguine that this proposed bill is nothing much.
It’s becoming clear that the standard operating procedure of the UKG is to try and find a way to break international law by sleight of hand while proclaiming its not doing it.
As DAG points out, this Bill will “make it harder practically for convention rights to be enforced.”