The Secretary of State for Justice, Dominic Raab, has introduced a new ‘British Bill of Rights’ to Parliament. The government claim that the legislation will “end the abuse of the human rights framework and restore some common sense” to the UK’s justice system by rebalancing the relationship between the legislature and the courts.

 

This new Bill of Rights is designed to both overhaul and replace the 1998 Human Rights Act, which incorporated the rights contained in the European Convention on Human Rights into UK Law for the first time. At the time, the Human Rights Act was described as “bringing rights home”.

 

Critics of the government’s proposed Bill of Rights include the Law Society of England and Wales, the Law Society of Scotland, as well as NGOs such as Liberty and Amnesty International.

 

In this article, we will assess the pros and cons of this Bill of Rights, as well as look at why the government is seeking to introduce this legislation.

 

Background

 

Ever since the European Convention on Human Rights (ECHR) was enshrined into UK law with the introduction of the 1998 Human Rights Act under Tony Blair’s Labour government, the idea of a British Bill of Rights has been mooted by Conservatives and Eurosceptics alike. Indeed, it had been part of the Conservative Party’s 2010 manifesto, although these ideas were shelved after going into coalition government with the Liberal Democrats.

 

The effect of the 1998 Human Rights Act had three main consequences:

 

  • Rather than having to go to the European Court of Human Rights in Strasbourg if a person felt their human rights had been breached, it meant that justice could be sought in a British court.
  • Public bodies and institutions had to respect and protect human rights within the HRA.
  • Parliament must ensure that all new laws are compatible with the European Convention on Human Rights. This also applies to the courts, which must ensure that laws are interpreted in a way which is compatible with the ECHR.

 

The Human Rights Act has been credited for achieving justice for the 96 victims of the Hillsborough football disaster, the Mid Staffordshire NHS scandal, securing peace in Northern Ireland, as well as many more examples. Nevertheless, its critics have claimed that the Human Rights Act ‘protects terrorists’ and makes it too difficult to deport criminals. Criticism has taken on an especially political dynamic since Brexit. For instance, the prevention of the first deportation flight to Rwanda under the government’s Rwanda policy was decried by ECHR critics for allowing ‘anonymous judges in Strasbourg’ to influence the British legal system.

 

The idea of “taking back control” has therefore continued to be one of the key driving forces for proponents of a British Bill of Rights, something which has also been observed with the government’s proposed dismantling of the Northern Ireland Protocol.

 

What is the British Bill of Rights?

 

While the government have stated their continued commitment to the European Convention on Human Rights, the Bill will establish the UK Supreme Court as the ultimate judicial decision maker on human rights cases in the UK.

 

In effect, the new Bill of Rights means that the UK courts will no longer need to interpret British laws in a way which is compatible with the ECHR. Furthermore, they won’t have to comply with case law and rulings made in European courts when they make decisions.

 

The Law Society of England and Wales President, Stephanie Boyce described the new Bill of Rights as: “a lurch backwards for British justice.” She added that it would “create an acceptable class of human rights abuses in the United Kingdom – by introducing a bar on claims deemed not to cause ‘significant disadvantage’.

 

According to the government, the new Bill of Rights will:

 

1. Strengthen the rights for freedom of speech

2. Recognise the right to jury trial

3. Limit courts’ powers for certain rights, making it easier for the government to deport criminals

4. Reduce burdens on public authorities

5. Ensure that public protection is given due regard in interpretation of rights

6. Limit the Bill’s territorial jurisdiction

7. Implement a permission stage to ensure trivial stages do not undermine public confidence in human rights.

8. Recognise that responsibilities exist alongside rights

9. Strengthens domestic institutions and the primacy of UK law

10. Increases domestic oversight

11. Enhances Parliament’s role in responding to Strasbourg rulings

 

Many of these changes will have significant consequences for UK law for human rights in the UK. Clause 15 of the legislation is designed to prevent human rights cases which the government deems “trivial” from reaching court by introducing a permission stage. Claimants will have to show that they have suffered “significant disadvantage” before a claim can proceed. While it is open to interpretation, it certainly seems to place a higher bar on which human rights cases are received in court.

 

One of the main motivations behind the Bill appears to be an attempt to make the UK’s immigration system increasingly punitive. Government figures like Home Secretary, Priti Patel, have often expressed their frustration that it is too difficult for the government to deport convicted criminals due to the Human Rights Act. Article 8 of the Human Rights Act means that everyone in the UK has the ‘right to family life’, which is “the right to respect for your family and private life, your home and your correspondence”.  This is clearly one of the main motivations behind the legislation, particularly in this post-Brexit environment.

 

Our thoughts

 

The timing of the announcement for the British Bill of Rights by the UK government appears to be a largely symbolic and political move, with many of the rights within the ECHR continuing to be enshrined. Nevertheless, it cannot be denied that the legislation represents a significant increase in the rights of the government over the individual and the courts. Furthermore, although the government claim the ECHR will continue to be adhered to, the courts will no longer be required to listen to the ECHR and can simply ignore their rulings. While the Human Rights Act of 1998 constrained those in power by adding another check to the authority of the executive, the proposed Bill of Rights gives the government a significant increase of power.

 

In addition, the Bill of Rights opens the door for further abuse by governments of the future by increasing the power of lawmakers over the courts, as well as allowing the government to decide for itself whether it feels human rights abuse is ‘genuine’ or not. Despite the government pledging its continued commitment to the European Convention on Human Rights, if this proves obstructive to its political aims then it would be unsurprising if it reneges on this commitment.

 

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