Out-Law Analysis | 08 Jul 2022 | 2:42 pm | 4 min. read
The UK government’s ‘Bill of Rights Bill’ will repeal and replace the 1998 Human Rights Act (HRA) and could potentially see hundreds of judgments overturned when it takes effect.
At its core, however, the rights derived from the European Convention of Human Rights (ECHR) that the Bill gives effect to are largely unchanged. The legislation is likely to take on a number of amendments before it completes its parliamentary passage, and is expected to come into force in 2023 or 2024.
The Bill maintains many features of the HRA and the list of ECHR rights that it gives effect to is unchanged, including the obligation in the HRA requiring UK bodies to comply with ECHR rights, giving jurisdiction to our courts to ensure the effective enforcement of the rights. This means that the legal basis for challenging a decision of a public body on ECHR grounds, such as a decision in planning law or immigration law, remains largely the same.
Quashing orders and declarations of incompatibility will become the remedies of first resort for domestic courts where domestic legislation is challenged in human rights claims, and we can expect to see a huge rise in their use in the future
The Bill also maintains the HRA’s distinction between primary and secondary legislation, so that courts cannot strike down an Act of Parliament – but may instead issue a declaration of incompatibility if they consider it breaches an ECHR right.
The single most significant reform in the Bill is its repeal of the HRA’s section 3 duty on domestic courts to interpret domestic legislation consistently with ECHR rights, so far as it is possible to do so. The application of this duty until now has meant that courts have only issued a quashing order striking down secondary legislation, or a declaration of incompatibility for primary legislation, as a last resort when that legislation is not capable of being read in a way that is compatible with ECHR rights.
The repeal of this part of the HRA means that a court will be required to give domestic legislation an interpretation based on its natural meaning, regardless of ECHR considerations. If that interpretation breaches an ECHR right, then a quashing order or declaration of incompatibility will be issued. As a result, quashing orders and declarations of incompatibility will become the remedies of first resort for domestic courts where domestic legislation is challenged in human rights claims, and we can expect to see a huge rise in their use in the future.
The Bill also contains standard powers enabling the government to determine exactly when and how the new Bill of Rights is brought into force, once approved by parliament. In theory, these could be used to preserve all previous section 3 interpretations of legislation after section 3 of the HRA is repealed.
But an unusual clause enabling the government to amend other legislation to preserve some section 3 interpretations suggests that the government does not intend to preserve all previous section 3 interpretations of legislation. It means that where this power is not exercised, potentially hundreds of judgments will be overturned immediately by the Bill when it enters into force, giving rise to new litigation reopening old disputes, and potentially more quashing orders and declarations of incompatibility.
The Bill contains clauses to replace section 2 of the HRA, which to date has required UK courts to take into account the case law of the European Court of Human Rights in Strasbourg, when interpreting ECHR rights. The Bill places importance on a textual interpretation of the ECHR rights and empowers domestic courts to diverge from Strasbourg case law, though not in ways that expand the protection offered by an ECHR right.
These changes, however, are unlikely to have a significant impact in practice, as courts will still be permitted to follow Strasbourg case law. Courts are likely to do so unless given powerful reasons to depart from it, given the risks to legal certainty this would pose.
While the Bill does give effect to the full range of ECHR rights, it also imposes restrictions on those rights in a number of limited and specific ways. Notably, it bars a court from interpreting an ECHR right as imposing a positive obligation on a public body, unless there is already case law to that effect, and excludes the courts’ jurisdiction in relation to any act done in the course of overseas military operations.
The Bill prevents a court from holding legislation on deportation to be in breach of the right to private and family life, unless the impact on the claimant’s family is ‘exceptional and overwhelming’, and provides that a court may not strike down a deportation order, unless the court concludes there is a breach of the right to a fair trial “so fundamental as to amount to a nullification of that right”. It also bars a court from taking into account any order of the European Court of Human Rights requiring interim measures to be put into place to protect a claimant.
As the UK’s national law will not be giving full effect to ECHR rights in these contexts, we are likely to see an increase in claims submitted to Strasbourg. In turn, this means that enforcement in such cases will be taken out of the hands of domestic courts, with greater emphasis placed on the politics of persuasion in the Council of Europe and the UK parliament.
The Bill contains numerous other reforms which, taken individually, are unlikely to have a significant impact in practice. But, collectively, they will increase the complexity of litigation of ECHR rights in the UK courts. A number of clauses instruct the courts to attach greater weight to particular factors: textual interpretation, protection of the public, assessments by parliament of the balance of competing rights, freedom of speech, protection of journalistic sources, and freedom of religion. Litigation is further complicated by a new permission stage that a claimant must pass, and detailed rules about the remedies that are available for successful claims.
27 May 2022