A British Bill of Rights
The Govt. are finally consulting on the Human Rights Act. The closing date is 8th March 2022 11:59. Here are my notes The first page or two detail the questions from the consultation, you can skip them by clicking here. …
I have transcribed the 29 questions from the consultation and placed them behind a viewing toggle.
- Question 1: We believe that the domestic courts should be able to draw on a wide range of law when reaching decisions on human rights issues. We would welcome your thoughts on the illustrative draft clauses found after paragraph 4 of Appendix 2, as a means of achieving this.
- Question 2: The Bill of Rights will make clear that the UK Supreme Court is the ultimate judicial arbiter of our laws in the implementation of human rights. How can the Bill of Rights best achieve this with greater certainty and authority than the current position?
- Question 3: Should the qualified right to jury trial be recognised in the Bill of Rights? Please provide reasons
- Question 4: How could the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers through injunctions or other relief?
- Question 5: The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations above. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?
- Question 6: What further steps could be taken in the Bill of Rights to provide stronger protection for journalists’ sources?
- Question 7: Are there any other steps that the Bill of Rights could take to strengthen the protection for freedom of expression?
- Question 8: Do you consider that a condition that individuals must have suffered a ‘significant disadvantage’ to bring a claim under the Bill of Rights, as part of a permission stage for such claims, would be an effective way of making sure that courts focus on genuine human rights matters? Please provide reasons.
- Question 9: Should the permission stage include an ‘overriding public importance’ second limb for exceptional cases that fail to meet the ‘significant disadvantage’ threshold, but where there is a highly compelling reason for the case to be heard nonetheless? Please provide reasons
- Question 10: How else could the government best ensure that the courts can focus on genuine human rights abuses
- Question 11: How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities from being impacted by costly human rights litigation? Please provide reasons
- Question 12: We would welcome your views on the options for section 3.
- Option 1: Repeal section 3 and do not replace it.
- Option 2: Repeal section 3 and replace it with a provision that where there is ambiguity, legislation should be construed compatibly with the rights in the Bill of Rights, but only where such interpretation can be done in a manner that is consistent with the wording and overriding purpose of the legislation.
- Question 13: How could Parliament’s role in engaging with, and scrutinising, section 3 judgments be enhanced?
- Question 14: Should a new database be created to record all judgments that rely on section 3 in interpreting legislation?
- Question 15: Should the courts be able to make a declaration of incompatibility for all secondary legislation, as they can currently do for Acts of Parliament?
- Question 16: Should the proposals for suspended and prospective quashing orders put forward in the Judicial Review and Courts Bill be extended to all proceedings under the Bill of Rights where secondary legislation is found to be incompatible with the Convention rights? Please provide reasons.
- Question 17: Should the Bill of Rights contain a remedial order power? In particular, should it be:
a. similar to that contained in section 10 of the Human Rights Act;
b. similar to that in the Human Rights Act, but not able to be used to amend the Bill of Rights itself;
c. limited only to remedial orders made under the ‘urgent’ procedure; or
d. abolished altogether?
Please provide reasons.
- Question 18: We would welcome your views on how you consider section 19 [Statement of Compatibility] is operating in practice, and whether there is a case for change.
- Question 19: How can the Bill of Rights best reflect the different interests, histories and legal traditions of all parts of the UK, while retaining the key principles that underlie a Bill of Rights for the whole UK?
- Question 20: Should the existing definition of public authorities [in section 6 of the HRA] be maintained, or can more certainty be provided as to which bodies or functions are covered? Please provide reasons.
- Question 21: The government would like to give public authorities greater confidence to perform their functions within the bounds of human rights law. Which of the following replacement options for section 6(2) would you prefer? Please explain your reasons.
- Option 1: provide that wherever public authorities are clearly giving effect to primary legislation, then they are not acting unlawfully; or
- Option 2: retain the current exception, but in a way which mirrors the changes to how legislation can be interpreted discussed above for section 3.
- Question 22: Given the above, we would welcome your views on the most appropriate approach for addressing the issue of extraterritorial jurisdiction, including the tension between the law of armed conflict and the Convention in relation to extraterritorial armed conflict.
- Question 23: To what extent has the application of the principle of ‘proportionality’ given rise to problems, in practice, under the Human Rights Act? We wish to provide more guidance to the courts on how to balance qualified and limited rights. Which of the below options do you believe is the best way to achieve this? Please provide reasons.
- Option 1: Clarify that when the courts are deciding whether an interference with a qualified right is ‘necessary’ in a ‘democratic society’, legislation enacted by Parliament should be given great weight, in determining what is deemed to be ‘necessary’.
- Option 2: Require the courts to give great weight to the expressed view of Parliament, when assessing the public interest, for the purposes of determining the compatibility of legislation, or actions by public authorities in discharging their statutory or other duties, with any right.
We would welcome your views on the above options, and the draft clauses after paragraph 10 of Appendix 2.
- Question 24: How can we make sure deportations that are in the public interest are not frustrated by human rights claims? Which of the options, below, do you believe would be the best way to achieve this objective? Please provide reasons.
- Option 1: Provide that certain rights in the Bill of Rights cannot prevent the deportation of a certain category of individual, for example, based on a certain threshold such as length of imprisonment.
- Option 2: Provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights.
- Option 3: Provide that a deportation decision cannot be overturned, unless it is obviously flawed, preventing the courts from substituting their view for that of the Secretary of State.
- Question 25: While respecting our international obligations, how could we more effectively address, at both the domestic and international levels, the impediments arising from the Convention and the Human Rights Act to tackling the challenges posed by illegal and irregular migration?
- Question 26: We think the Bill of Rights could set out a number of factors in considering when damages are awarded and how much. These include:
a. the impact on the provision of public services;
b. the extent to which the statutory obligation had been discharged;
c. the extent of the breach; and
d. where the public authority was trying to give effect to the express provisions, or clear purpose, of legislation.
Which of the above considerations do you think should be included? Please provide reasons.
- Question 27: We believe that the Bill of Rights should include some mention of responsibilities and/or the conduct of claimants, and that the remedies system could be used in this respect. Which of the following options could best achieve this? Please provide reasons.
- Option 1: Provide that damages may be reduced or removed on account of the applicant’s conduct specifically confined to the circumstances of the claim; or
- Option 2: Provide that damages may be reduced in part or in full on account of the applicant’s wider conduct, and whether there should be any limits, temporal or otherwise, as to the conduct to be considered.
- Question 28: We would welcome comments on the options, [Facilitating consideration of and dialogue with Strasbourg, while guaranteeing Parliament its proper role]
above, for responding to adverse Strasbourg judgments, in light of the illustrative draft clause at paragraph 11 of Appendix 2.
- Question 29: We would like your views and any evidence or data you might hold on any potential impacts that could arise as a result of the proposed Bill of Rights. In particular:
a. What do you consider to be the likely costs and benefits of the proposed Bill of Rights? Please give reasons and supply evidence as appropriate;
b. What do you consider to be the equalities impacts on individuals with particular protected characteristics of each of the proposed options for reform? Please give reasons and supply evidence as appropriate; and
c. How might any negative impacts be mitigated? Please give reasons and supply evidence as appropriate.
The road to now.
Here is the current law.
How has the HRA helped in employment law? The EHRC published a report, called “The UK and the European Court of Human Rights“ by Donald, Gordon and Leach.
There was an Independent Human Rights Act Review, the Gross review which published its evidence, and presented a report also hosted on that page. The TUC presented evidence, focusing on Trade Union Rights, Privacy & Discrimination. They also make the point that it is unnecessary and likely to lead to a reduction in rights, and conflict with other treaties, most importantly, probably the TCA.
Liberty ran an event on 1/2/2022 and I found the following links during that event, some are about the law and the politics, some of them are organisations whose reps spoke sense,
- The government’s new proposals for the human rights act part one the proposals in outline by Richard Clayton at the UKCLA blog.
- The Governments new proposals for the human rights act Part 2, an assessment by Richard Clayton at the UKCLA blog.
- The first panel speaker, was Prof Alison Young, who is an editor of the UKCLA blog, and made a press release on her evidence to the joint committee on human rights. (Has it reported yet?) I also found this pod/web-cast on the HRA from her. She high-lighted the proposal to strip courts of the power to strike down secondary legislation and to weaken the proportionality tests and thus the courts’ balancing tools.
- It has also been suggested that the talking about resources in terms of judicial effort and in terms of remediation are important. This casem P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) / P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) was quoted where the Supreme Court ruled that a council had to take a tenants disability into account when planning its accommodation offer.
- I checked out the ECHR. reminded my self that A3, is Article 3 – the right not to be tortured or treated in an inhuman or degrading way, A6 is the right to a fair trial, Article 11, freedom of association. There’s a lot of space in the phrase, ‘necessary in a democratic society’. It seems that A3 will be privileged.
- The Devolution Laws and the Good Friday Agreement are going to play havoc with the parliamentary process, and maybe the EU Withdrawal agreement too via the Northern Ireland protocol.
- The meeting was attended by British Institute for Human Rights and the Bingham Centre.
- The Secretary for Justice is Dominic Raab who wrote, The Assault on Liberty, reviewed in the independent and the Guardian. People at the seminar were not impressed, and from the reviews, I suspect I won’t be either; it’s not just the ethos that I expect to disagree with, but also the logos. See me, on rhetoric.
- A question was asked about intersectionality as the panel speakers were on the whole not addressing the totality of the threat each focusing on the threat to their communities; they all agreed to work together but when I asked where was the analysis of the threat to the ERA, the answer was none.
aEIP ran an event on 7th Feb and I made these notes,
- The HRA Article 3(1) says, “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This is likely to be the target of change. We should at the least seek to preserve the courts ability to quash secondary legislation.
- There proposals to exclude people from access to some rights. Human Rights are universal. Past behaviour may become a factor in being considered worthy of rights.
- It’s likely that again the key battleground will be deportations, although the past one has been benefits case law.
- They seem to be seeking to make secondary legislation immune to judicial review,
- “Significant disadvantage” is, it seems, a high legal barrier which they propose as part of a test of standing.
AEIP have produced a guide and tool
They consider the priorities to be,
- Human Rights must be universal
- It would make it harder for citizens to uphold Convention rights in UK courts
- opposing the government’s propose a ‘permission stage’ in order to bring claims under the new Bill of Rights.
- it ignores the Independent Review.
BIHR have produced a cheat sheet.
See also https://twitter.com/sfhosali/status/1491826758861135874
The featured image is from from flickr, by itsnogame CC BY 2017