The Bill of Rights Bill has just been published.

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

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

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More from @ProfMarkElliott

Jun 22
Raab statement on Bill of Rights still ongoing. Conservative MPs fulminating about 'ancient legal tradition', 'foreign judges', 'taking back control'. Daily Mail/Judicial Power Project playbook stuff. Bill won't appear until statement is completed.
Raab making it clear in response to MPs' interventions that the Bill of Rights project is about taking back control from both the ECtHR and judges generally: the UK, and the UK Parliament specifically, must have the 'final word', he says.
Another familiar trope, this time from John Redwood: the UK Supreme Court must be made supreme, rather than being answerable to foreign judges. All very predictable stuff — but point that UK will remain part of ECHR, so bound by ECtHR judgments, seems lost on him (and others).
Read 12 tweets
Jun 15
'Perhaps a conflict with the lawyers — and the courts — was just what ministers wanted.' Yes: a long process, now reaching its denouement, reflecting aversion to judicial scrutiny generally & European/international 'interference' especially.

Thread /1…
Indeed, we can go further: it's now plain that the Government has an aversion to scrutiny *generally*, whether domestic or international, legal or political: see eg unlawful prorogation of Parliament; disdain for Ministerial Code & other political constraints/conventions. /2
It seems to me (and I'm not prone to melodrama) that we are fast approaching a significant, and potentially dangerous, constitutional inflection point, as a variety of control/scrutiny mechanisms are mischaracterised by Government and others as undemocratic. /3
Read 9 tweets
Jun 13
The Northern Ireland Protocol Bill has been published:…
Clause 2 is important: it exempts the Protocol from the effect of s 7A(2) of the EU (Withdrawal) Act 2018, which provides for direct effect and primacy in UK of certain aspects of Withdrawal Agreement law.
Section 7A(2) of the EUWA 2018 gives effect to Article 4 of the Withdrawal Agreement. It seems to me that exempting the Protocol from section 7A(2) is a clear breach of Article 4 of the WA.
Read 18 tweets
Oct 21, 2021
Reposting my response from yesterday to the Attorney-General's speech on (as she sees it) judicial interference in political matters — with which I take issue. The blogpost below links to my Twitter thread on this and to a short video. 1/3
Some people have queried whether it's sensible to respond to this sort of thing. I understand why the question is posed. But my view is that the direction of thinking in Government is clear and that it is important to identify, raise and explain concerns. 2/3
I am fortified in that view by the reliance placed by the Attorney-General on the work of Judicial Power Project, whose arguments, which are clearly significantly influencing the Government's thinking, need to be addressed and challenged in the interests of balanced debate. 3/3
Read 5 tweets
Oct 20, 2021
Following @DominicRaab's extraordinary interview at the weekend (on which see…), I see the Attorney-General, @SuellaBraverman, has now joined the debate. (1)
The Attorney-General gave the keynote speech at a recent @publiclawprojct conference. The full text of her speech can be found here:…
The Attorney-General's central claim is that courts have been interfering in political matters, that they should stop doing so because that is none of their business, and that Parliament can intervene when judges overstep the mark because it's sovereign. (3)
Read 21 tweets
Oct 17, 2021
Another Sunday, another Sunday Telegraph story demonstrating the fragile state of respect for the rule of law on the part of the UK Government. The Justice Secretary's apparent plans raise three key constitutional concerns. (1)
First, it sounds like the Government is reopening the question of judicial review 'reform'. That isn't in itself problematic: JR isn't perfect and there's no inherently 'right' balance between executive/legislative autonomy and judicial overview. (2)
But we should be concerned if the Government is inclined to reduce the courts' judicial review powers simply because courts make decisions that it finds uncomfortable. Government's willingness to accept such discomfort is a prerequisite in a rule of law based democracy. (3)
Read 16 tweets

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