UK Government pushes ahead with its Bill of Rights

The UK Government has responded to its consultation paper ‘Human Rights Act Reform: A Modern Bill of Rights’, published on 14 December 2021, which invited comments on proposals to revise and replace the Human Rights Act 1998 (HRA) with a UK Bill of Rights. A total of 12,873 responses to the consultation paper were received.

In this article, we focus on four of the most pertinent areas to our clients, and look to the recently introduced Bill of Rights which formed part of the 2022 Queen’s Speech, as the next step of the government’s commitment to reform the HRA.

Summary of the consultation response

The position of the UK Supreme Court

According to the government, under the HRA, the domestic courts have largely treated Strasbourg case law as having presumptive authority, which has ultimately resulted in the supremacy of the UK Supreme Court being undermined by Strasbourg. As such, the consultation paper asked how the Bill of Rights could clarify that the UK Supreme Court is the ultimate judicial arbiter of UK laws.

Interestingly, 1,763 respondents advocated for no change from the existing arrangement, 213 mentioned that there needs to be a separation of power between the courts and parliament, and only 44 respondents said that the government should ‘enshrine’ the Supreme Court’s status in law.

A permission stage for human rights claims

The government asked if a test of significant disadvantage was an effective way of making sure the courts focus on genuine human rights matters: must a claimant have suffered a 'significant disadvantage' to bring a claim under the Bill of Rights, as part of a permission stage for such claims? Ninety per cent of respondents were not supportive of such a proposal. One of the reasons for this lack of support could be that the consultation provides no evidence that UK courts are not already focused on genuine human rights matters.  

The public was also asked whether a permission stage should include an “overriding public importance” limb for exceptional cases that fail to meet the 'significant disadvantage' threshold, but where there is a highly compelling reason to be heard. Again, seventy six per cent responded no.

Moving forwards, the response states that the “government remains convinced that introducing a permission stage is necessary to ensure that trivial claims do not undermine public confidence in human rights more broadly but has amended the proposal based on further policy development and analysis”. It goes on to explain that the permission stage will apply where ECHR Convention rights are relied on to bring certain proceedings against a public authority under the Bill of Rights.

Judicial remedies: section 8 of the Human Rights Act

Keen to avoid the Bill of Rights being a “fall-back route to compensation on top of private law remedies”, the consultation proposed strengthening section 8(3) of the HRA, so that applicants pursue any other claims they may have first, to allow the courts to decide whether private law claims already provide adequate redress.

Whilst 1,570 respondents disagreed, stating that no change is required, the government concludes that the Bill of Rights will allow UK courts to consider awards for damages in a UK context, in addition to introducing a provision for courts to take account of “the public interest when making an award, by expressly considering certain factors such as the impact on a public authority’s ability to continue to provide services to society as a whole”.

Positive obligations

The government believes that ECHR Convention rights have been interpreted and expanded by UK courts to require public authorities to discharge various ‘positive obligations’. It therefore asked how the Bill of Rights can address this and prevent public service priorities from being impacted by costly human rights litigation.

1,596 respondents advocated for no change to the current framework, 1,265 mentioned that positive obligations provide protection for vulnerable people and 874 respondents considered this not to be a genuine issue.

Looking to next steps, the government states that the Bill of Rights will ensure that courts are unable to adopt new interpretations that impose positive obligations on public authorities. It will also restrict the application of existing obligations.

The Bill of Rights

Following the Queen’s Speech, the government introduced the Bill of Rights Bill into the House of Commons on 22 June 2022. The legislation will still give effect to the ECHR, but according to the Bill’s explanatory notes it will also:

• Ensure human rights are not interpreted “over-expansively”, and are considered in view of the UK’s distinct contexts.
• Increase democratic oversight of human rights issues.
• Reduce burdens on public authorities.
• Give great weight to the views of parliament in considerations of public interest.
• Implement a permission stage during legal proceedings to ensure trivial cases do not undermine public confidence in human rights.
• Ensure parliament’s role in responding to adverse judgments of the ECHR.
• Strengthen the right to freedom of speech.

Comment

Reform of the HRA continues to be a contentious and polarising issue. Nonetheless, the government has maintained that HRA reform is required with Dominic Raab, the Justice Secretary, commenting that a new Bill of Rights “will strengthen our UK tradition of freedom whilst injecting a healthy dose of common sense into the system”.

However, with the House of Commons having adjourned for recess, it may be some time until attention is returned to this Bill.

Related item: UK Government plans to reform Human Rights Act