Explainer series – The Bill of Rights Bill and repeal of the Human Rights Act

The Human Rights Act incorporates the European Convention on Human Rights (ECHR) into UK law meaning that British citizens can defend their rights in UK courts and that public authorities have an obligation to act in a way that is compatible with human rights.

Some of the ways the Human Rights Act has been used:

• to prompt a full inquest into the Hillsborough disaster.
• to ensure that UK soldiers are given safe equipment.
• to protect a journalist from unfair imprisonment.

The Bill of Rights Bill has been proposed in tandem with plans to scrap the Human Rights Act.

The new bill would not end the UK’s membership to the European Court of Human Rights but it would remove the duty on courts in the UK to interpret legislation in a way that is compatible with the way in which the European Court would.

It would also introduce new measures that would change how those in the UK can make human rights claims.

 About the bill:

The Bill of Rights Bill proposes the following changes:

• Requiring courts to consider claimants’ wider lives and behaviour such as any criminal conduct even if it has no relation to the case at hand
• Introducing an additional ‘Permissions Stage’ where claimants have to evidence ‘significant disadvantage’ before their case is even allowed to be considered by a court
• Requiring UK courts to give significant weight to the views of UK Parliament when considering rights issues
• Removing the ability to make human rights claims that arise from overseas military operations
• Setting a higher threshold for challenges to deportations for foreign national offenders
• Limiting the interpretation of rights to a literal reading of the text of the ECHR rights, rather than viewing the convention as a living document that evolves to reflect changing societal norms
• Prohibiting courts from requiring public bodies to actively uphold a right that has been violated (an example would be schools providing appropriate education materials for children with disabilities during lockdown, the ability for courts to enforce this would be scrapped)

This means that it will be more difficult to hold the state accountable for human rights violations as the UK Supreme Court will have primacy over the European Court, and courts can be limited by UK Parliament in their ability to protect those whose rights have been violated.

Many of the measures go against the core principles of human rights in that they should be universal, inherent and inalienable, by introducing measures of ‘worthiness’ in claims and creating a hierarchy of cases.

The Parliamentary Joint Committee on Human Rights have stated:

“The government should not proceed with this bill, it weakens rights protections, it undermines the universality of rights, it shows disregard for our international legal obligations; it creates legal uncertainty and hinders effective enforcement; it will lead to an increased caseload in Strasbourg, and will damage our international reputation as guardians of human rights”

 

Status:

The Bill received its 1st reading in the House of Commons on 22nd June 2022. Plans for its 2nd reading (the second of 5 stages required before the Bill is presented to the House of Lords) have since been stalled.

On the 10th of January 2023, Deputy Prime Minister Dominic Raab stated: “We have published the Bill of Rights, and we will bring it forward for a Second Reading as soon as parliamentary time allows.”

Prime Minister Rishi Sunak more recently refused to provide a parliamentary timetable for the bill.

How does this affect me?

A joint statement from 130 Scottish third sector organisations highlights that enacting the bill would “significantly diminish protection for human rights in law” urging that the Human Rights Act not be repealed as this would represent a backwards step for human rights protections in Scotland.

The Scotland Act (1998) grants devolved powers to the Scottish Government provided that it acts compatibly with the ECHR, this creates conflict between the Bill of Rights Bill and the terms of Scottish devolution.

There has been no clarity from the UK government on how the proposed Bill and repeal of the Human Rights Act would be implemented in the devolved nations. Scottish and Welsh Ministers have jointly called for the proposals to be shelved and for the UK Government to reaffirm their commitment to the Human Rights Act.

If the bill is approved by the UK Government this could lead to a system in which human rights are protected and enacted differently across the UK or the bill being pursued in breach of the Scotland Act and other devolved legislation – although this is speculation.

Where can I find out more?

• The British Institute of Human Rights have launched a project titled ‘Protecting Our Human Rights Act’ – British Institute of Human Rights
• Liberty have published information on the Human Rights Act and the protections impacted by the new Bill– Liberty
• The Scottish Human Rights Commission have published information on the Bill with particular reference to what it means for Scotland – SHRC
• The Human Rights Consortium Scotland are regularly updating this page with news and developments on the Bill – HRCS