JCHR urges Government not to proceed with the Bill of Rights Bill 

The Government’s proposals to replace the Human Rights Act and change how human rights are protected in the UK would create large scale uncertainty and seriously damage people’s ability to enforce their rights, the Joint Committee on Human rights has warned. In a report published today, the committee calls on the Government to reconsider the majority of the Bill of Rights Bill, calling into question the wisdom of proceeding with the legislation at all.

The Bill of Rights Bill is likely to seriously weaken the ability of individuals to seek redress for human rights breaches. Under the reforms, new barriers would be created that would make it harder for people to enforce their rights inside and outside of court. It would also undermine the universality of human rights by making it more difficult for certain groups to bring cases. Attempts in the Bill to change how the courts of our domestic legal systems interpret rights, read legislation and award damages are also likely to act as barriers that prevent individuals from enforcing their rights.

Changes to the way in which courts interpret human rights would result in them focusing on the original text of the European Convention of Human Rights as it was adopted in the 1950s, rather than how it has developed to reflect human rights in the modern world. Removing the courts’ ability to read legislation so it is compatible with human rights would deprive individuals of a key protection for their rights. It also risks dangerous uncertainty by abandoning decades of important case law.

The Bill would impact the application of positive obligations, which require public bodies to take action to protect rights. Some of these obligations include conducting effective investigations into the loss of life (as in the Hillsborough inquests) or into serial sexual offenders (as in the John Worboys case). The Bill would prohibit the courts from applying new positive obligations arising from judgments of the European Court of Human Rights and limit the application of current positive obligations if they, for example, impact on the resources of public authorities. These changes are likely to have an adverse impact on vulnerable individuals and could leave them without a remedy in the UK courts.

The Committee concludes that the likely result of the legislation is that more people would need to go to the European Court of Human Rights to enforce their rights and that more adverse judgments are likely to be made against the UK.

The Committee is concerned that the Bill would require courts to ignore important safeguards that currently protect individuals in urgent situations, for example where there is a credible risk to life, or of torture or inhuman or degrading treatment. At present, interim measures can be issued by the European Court of Human Rights that put a temporary halt on any countries taking action which could breach human rights until a proper assessment has been carried out. The Bill of Rights Bill would instruct public authorities and courts to ignore these measures, which could place individuals at serious risk and violate the UK’s international legal obligations.

There is also concern that the Bill will enable the Government to evade liability for human rights infringements committed during overseas military operations in the future. Whilst the Bill does not authorise this course of action yet, it does enable the Secretary of State to take the decision to do so if he is satisfied it is compliant with the Convention. The Committee argues that any change in the law relating to how Convention rights are applied to military operations overseas should be taken by Parliament, following full scrutiny and should go ahead only if Parliament is content that such action would comply with the UK’s international obligations.

The Government argues that the Bill would “rebalance” the constitution and protect the sovereignty of Parliament. However, little in the Bill strengthens Parliament’s role. It would remove the current obligation on Government Ministers to make a statement of compatibility for all legislation relating to Convention Rights. The Committee finds these statements to be an effective measure that embeds human rights in Government decision-making and the legislative process, and helping to enable effective scrutiny. While the Bill would require the Government to give notice to Parliament of adverse judgments in the European Court of Human Rights which is welcome, the Committee finds that the Government should go further by explaining what action the Government plans to take and provide a timescale for doing so.

Rather than creating a strong new framework for governing how human rights are protected in the UK, the Bill appears to be designed to ‘tip the balance’ in favour of the state when facing allegations of human rights violations. The Bill includes a clause that would require courts to “give great weight” to protecting freedom of speech, however it is unclear how this would be applied in practice, it excludes other forms of expression, and it is likely to upset the balance with other Convention Rights. Another clause is specifically designed to protect deportation legislation from legal challenge on the basis that it is incompatible with the right to private and family life. This clause is particularly concerning as it extinguishes the right to private and family life for affected persons in all but the rarest of cases. The Committee calls for serious reconsideration of this provision given its likely incompatibility with the Convention.

Given the impact of the Bill on the nations of the UK and the centrality of universal human rights to the devolution settlements and the Good Friday Agreement, the Committee also believes reform should not be pursued without the consent of the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly.  

Chair of the Joint Committee on Human Rights, Joanna Cherry KC MP said:  

“Human Rights are universal.  A Bill of Rights should reaffirm and reinforce the fundamental rights that protect everyone in the UK, but this Bill does nothing of the sort. Instead, it removes and restricts certain human rights protections that the Government finds inconvenient and prescribes a restrictive approach to the interpretation and application of the European Convention on Human Rights in the courts of our domestic legal systems.   

We are also very concerned about the adverse impact on the constitutional arrangements of the devolved nations and the Good Friday Agreement. 

“The end result, if the Bill is enacted in its current form, will be more barriers to enforcing human rights, more cases taken to Strasbourg and more adverse judgments against the UK. Decades of precedent and case law, that the UK still plays a key role in developing, would be abandoned, leading to legal uncertainty and litigation.    

“We have called on the Government to reconsider the vast majority of the clauses of the Bill. However, there is such little appetite for these reforms and the impact is likely to be so damaging to human rights protection in the UK it may be more sensible to scrap the Bill in its entirety.”