Are we getting a Bill of Rights, and what would this mean for the UK?

In June 2022, the government unveiled its plans to reform the Human Rights Act (‘HRA’).

This was former Deputy Prime Minister Dominic Raab’s flagship policy, and the Conservatives’ attempt to deliver on its manifesto to reform the HRA.

In September 2022, however, our new Prime Minister Liz Truss promptly pulled the ‘Bill of Rights Bill’. The government has confirmed it will now reconsider how to deliver its agenda, leaving the way forward unclear, including whether any version of the Bill will progress at all.

Here, we discuss the previously proposed reforms (the ‘Bill of Rights Bill’), the background to the proposals, and what this might mean for the UK.

Would the Bill of Rights Bill damage the rule of law and make it harder for people to protect their rights as some predict?  And will the Bill inject the ‘common sense’ and restore the confidence suggested by the Tories, or will it merely curtail our freedoms under the guise of keeping terrorists and hardened foreign criminals off our shores?

What’s the current law and its origins? The Human Rights Act 1998

Over 20 years ago, the Labour government introduced the Human Rights Act (‘HRA’). The Act brought the European Convention on Human Rights (‘the Convention’) into UK law. Rather confusingly, this has nothing to do with the European Union (‘EU’).

It’s worth mentioning at this point that the wording of the Convention itself - a Treaty originally proposed by Winston Churchill after the Second World War – was drafted mainly by British lawyers.

The rights set out basic legal minimum standards as to how everyone should be treated by the state, and include the right to a fair trial, the right to life, liberty, and freedom from torture. Moreover, human rights come from UK legal traditions spanning over 1000 years.

Before the HRA, the only way to enforce these rights was by taking a case to the European Court of Human Rights (‘ECtHR’) in Strasbourg (France), a very timely and costly exercise, not easily accessible by the ordinary citizen. The HRA makes these rights enforceable in our home courts.

The government White Paper which preceded the Human Rights Bill stated:

“Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts - without this inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law. And there will be another distinct benefit. British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe” (Home Office, Rights brought home: the Human Rights Bill, Cm 3782, October 1997, para 1.14).

Another reason for the introduction of the HRA, was to remedy the feeling that UK laws were being made by foreign judges who knew little or nothing of the day-to-day realities of life here, or the subtleties of our societal values. The application of human rights is as complex and dynamic as the humans and societies these rights serve; the argument being that the interpretation of the same should be left to those best placed to decide what is best for this country, our own judges.

In recent years, however, popular sentiment has grown against the alleged ‘elasticity’ of the HRA, coupled with a view of judges interpreting the law too far in favour of, for example, terrorists and foreign criminals. This has been taken by some – including the former Deputy Prime Minister, Dominic Raab, to undermine the credibility of human rights.

What are the proposals in the Bill of Rights Bill?

• What wouldn’t change?
  • The Bill of Rights Bill would retain all of the Convention rights as well as their ability to be enforced in domestic courts.
  • We would still be members of the Convention, and the obligations it places on government to secure the full range of convention rights for everyone in the UK, would remain.
  • Public authorities would still be required to act compatibly with our human rights.
• What would change?
  • The Bill of Rights would replace the HRA, and introduce a large number of new measures, including:
    • introducing a new permission stage to court proceedings seeking to enforce human rights here, requiring claimants to prove they have (or would) suffer significant disadvantage as a result of a breach of their rights before they can take their claim to court;
    • make it harder for foreign criminal facing deportation, to challenge this on the basis of their right to private and family life here;
    • removing the duty on courts to interpret legislation compatibly with convention rights;
    • removing the duty on courts to consider how the European Court on Human Rights (ECtHR) has interpreted a right;
    • limiting the interpretation of rights to a literal reading of the text of convention rights;
    • prohibiting courts from making a finding that a public body (e.g. the police) owes a positive obligation to any member of the public (e.g. to inform them of a threat to their life; such public obligations require the public body to take certain steps to actively protect, fulfil or facilitate a right)
    • requiring courts to give great weight to the views of parliament when balancing rights issues
    • preventing human rights claims that arise from overseas military operations

The Bill of Rights would likely:

• • significantly weaken the ability of all of us to enforce our rights through the courts and hold the state accountable for human rights violations; and

• • reduce access to the courts and limit the protection the courts can provide to someone whose rights have been violated.

What was clear from the Bill wording and the discussion leading up to it, was that the Government wanted to increase their own power, diminishing the rule of law.

If enacted, the Bill of Rights would likely diminish the respect afforded to the UK on the international stage when human rights are debated, at a time when the UK and the world are seeing unprecedented change – war, an economic downturn and a global pandemic.

What have the responses been to the government’s consultations?

The government’s own appointed panel in the Independent Human Rights Act Review found that the Human Rights Act is working well overall. The vast majority of responses to the government’s later consultation were also clear they did not support the proposals put forward, with 80–90% rejecting the reforms.

If reignited, you can expect to see campaigns designed to stir up public sentiment, overstating already ingrained popular ‘myths’, to gain popular support for the changes (focus on foreign national offenders, terrorists, murderers and the like), with little focus on the reality that the Bill of Rights will highly likely curtail the rights and freedoms from which of all of us in the UK benefit.

The debate as to what the Bill of Rights or any equivalent will finally say, will likely continue on through parliamentary committees, demanding thorough pre-legislative scrutiny.

Critics are likely to be very loud, and include the Law Society of England and Wales which says the Bill of Rights represents a “collision course with the rule of law”.

Labour describes the bill as a “con” and “fraudulent”, and fears it will prevent victims of rape, terror attacks and the like, from seeking justice.

The argument however, is set to continue for months if not years.

Conclusion

In our view, the Human Rights Act as it stands, provides robust protections for the rights and freedoms of everyone in the UK and ensures they can enforce these in domestic courts, whilst still allowing the court the flexibility and ‘margin of appreciation’ to interpret the rights in a way which is meaningful and appropriate to our society.

In our view, on the whole the HRA strikes the right balance between the democratic powers of the executive, parliament and the courts. In our view, any attempt by the government to diminish the rule of law and curtail our freedoms should be strongly fought against.

Our specialist solicitors within the Civil Liberties and Police Misconduct Team have extensive experience of representing clients seeking to bring challenges against public bodies for breaches of their human rights, in particular, the police, prisons and mental health authorities. If you are seeking advice, please feel free contact us for an initial, free discussion. Our solicitors can be contacted on 0207 632 4300.