Thread by @ProfMarkElliott

The Bill of Rights Bill has just been published.

I'll tweet some thoughts as I read through it...

publications.parliament.uk/pa/bills/cbill…

/1

It opens with an introductory clause setting out its aims. Interesting reference to UK as a 'parliamentary democracy': reflects narrative adopted by Raab in commons earlier — taking back control from courts and, in particular, the European Court of Human Rights. /2

Clause 3 seems to replace sections 2 and 3 HRA. /3

Clause 3(1) and (3) replace the section 2 obligation to take account of ECtHR jurisprudence. Now, primacy of UKSC as interpreter of Convention rights for purpose of domestic is emphasised. UK courts explicitly allowed to diverge from ECtHR. /4

Oddly, clause 3(3)(a) forbids UK courts from 'expanding' (beyond what, exactly?) protection given by Convention right unless confident ECtHR would adopt similarly expansionist reading. Strange to require this sort of judicial second-guessing. /5

Meanwhile, clause 3(2) seems to replace the interpretive obligation in section 3 HRA. There's no longer any judicial duty to interpret UK legislation compatibly with Convention rights so far as possible. This is a potentially very significant change. /6

Instead, clause 3(2) focusses on UK courts' interpretation of Convention rights (as opposed to domestic legislation). It appears to attempt to limit creative/expansive interpretations of rights; reference to 'preparatory work' suggests an originalist approach. /7

Then, clauses 4-8 further curtail UK courts' capacity independently to interpret Convention rights, seeking instead to steer the courts in particular directions — which, of course, might be inconsistent with ECtHR jurisprudence and UK's treaty obligations. /8

Clause 4 requires 'great weight' to be given to the importance of protecting the right to freedom of speech. This goes beyond the existing special provision in relation to freedom of speech made by s 12 HRA. /9

Clause 5 is extraordinary, and underlines the Government's willingness to open up a gap between (a) domestic application of the Convention and (b) the case law of the ECtHR and the UK's treaty obligations. /10

Clause 5 prevents UK courts from adopting new interpretations of Convention rights that impose positive obligations. It also severely limits their capacity to preserve existing interpretations of Convention rights that have that effect. /11

Clause 6 reflects the Government's view that human rights are not for the 'undeserving'. Thus, those serving custodial sentences who allege human rights breaches must give 'the greatest possible' weight to public protection in Art 2, 3, 4 and 7 cases. /12

Clause 7 enshrines the Government's view that the HRA is, in effect, undemocratic. When questions of proportionality (balance) are in play, courts will have to treat Parliament as having determined, by legislating, that an appropriate balance has been struck. /13

Clause 7 seems potentially very significant to me. Depending on how it is interpreted, it has the capacity significantly to curtail proportionality challenges to legislation. That said, it appears only to apply to the fair balance test — not, eg, to the prior necessity test. /14

Clause 8 is more targeted but no less significant. It seeks to insulate many deportation decisions from challenge on Article 8 (private & family life) grounds. Deportation provisions must be treated as compatible with the ECHR absent prospect of 'extreme harm'. /15

Like some of the earlier provisions already commented on, clause 8 will likely result in UK courts (again depending on how it is interpreted) having to conclude that there is not an ECHR breach when in fact there is one. This will place UK in breach of treaty obligations. /16

The purpose of clause 9 isn't immediately clear to me, given that jury trial is not incompatible with Article 6 ECHR. /17

Clause 10 maintains the courts' power to issue declarations of incompatibility. It's hard to know yet whether such declarations will be more likely or less likely under the Bill of Rights compared to the HRA. /18

On the one hand, courts are less likely to find incompatibilities to the extent that provisions like clauses 7 and 8 inhibit them from doing so. On the other hand, the absence of any section 3 HRA-style interpretive obligation may result in more incompatibilities. /19

Clause 12 is similar to s 6 HRA, requiring public bodies to act in accordance with Convention rights. But that obligation shrinks due to Bill of Rights provisions constraining courts' capacity to interpret Convention and thanks to removal of s 3 HRA interpretive obligation. /20

Clause 14 concerns a Judicial Power Project hobby-horse by seeking to shield overseas military operations from human rights claims. /21

Clause 15 introduces a new requirement: those seeking to bring claims against public bodies under clause 12 (ie HRA s 6 claims) must obtain court's permission. To do that, they must show alleged human rights breach has/would cause(d) 'significant disadvantage'. /22

Clause 15 does not, however, require permission for human rights matters to be pursued in other ways, eg seeking a declaration of incompatibility. /23

Clauses 20-24 set out various limitations on the courts' powers. Eg clause 20 allows appeals against deportation on due process grounds only if removal from UK would involve breach of fair trial right so fundamental as to nullify. /24

Clause 24 (perhaps inserted following the ECtHR's recent Rwanda decision?) requires ECtHR interim measures to be disregarded, including by UK courts. But this cannot change position in international law: such action would amount to breach of treaty obligations under ECHR. /25

Schedule 5, para 2 repeals the Human Rights Act 1998 in its entirety. /26

To conclude (I'll do a blogpost setting out these thoughts in more detail): the Bill of Rights seems to me significantly to weaken the scope for domestic protection of ECHR rights. /27

The overall strategy appears to be to marginalise the influence of the ECtHR while reducing domestic courts' scope to uphold Convention rights. /28

Domestic courts' powers are limited in a variety of ways, including the abolition of the s 3 HRA interpretive obligation/power; micro-management of how Convention rights are interpreted; and several provisions that explicitly limit domestic courts' powers. /29

The key point is that *nothing* in the Bill of Rights changes the position in international law. The UK's binding treaty obligations as a State Party to the ECHR will remain *exactly the same*. /30

This means that while individuals in the UK will be less able to obtain relief in UK courts, things that were breaches of Convention rights before the Bill of Rights will *still* be breaches of Convention rights *under* the Bill of Rights. /31

The upshot is that the UK will (when claimants can afford to pursue cases in Strasbourg) be likely to be found in breach of the Convention more often. /32

It follows that the Justice Secretary's claim in the House of Commons today that the Bill of Rights *expands* human rights protection is clearly incorrect. It represents a significant step back from the level of protection provided by the Human Rights Act at present. 33/33

ends