The Bill of Rights will create more work for woke activist lawyers

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This week has seen the government’s Bill of Rights Bill introduced to the House of Commons by Dominic Raab, the Justice Secretary. It follows an independent review and a public consultation, both of which seem to have been largely ignored. When enacted, it will be called simply the “Bill of Rights 2022” (not “Act”, like every other act of parliament). So it must be something special, you would think.

It is certainly an important piece of legislation. The bill repeals and supplants the Human Rights Act 1998 (HRA), one of the most significant constitutional reforms of that Labour government. However, not everything changes. The UK remains (for now) party to the European Convention on Human Rights (ECHR), and the rights covered by the bill are the same “Convention rights” as in the HRA. Talk of adding special British-flavoured rights has come to nothing: rather embarrassingly, clause 9 on jury trial, for example, creates no new right – it simply says you can have a jury trial unless the law says you can’t.

But although the set of rights remains the same, the bill makes major changes to the way in which those rights are to be applied, interpreted and enforced.

For a start, claimants will now need to get permission to bring a human rights claim. Second, there is no equivalent of section 3 of the HRA, which had required the courts to interpret domestic legislation, so far as possible, compatibly with ECHR rights. And in various ways, the bill directs the UK courts to take a more restrictive interpretation of particular rights, and makes them less likely to find that legislation violates the Convention.

For example, the courts must give the “greatest possible weight” to the decisions of parliament in balancing competing factors; they must not interpret Convention rights in a way that imposes new positive obligations on public authorities. Courts must take a highly restrictive interpretation of Article 8 of the ECHR (right to respect for private and family life) in deportation cases – only finding a breach if there is “manifest harm” to the individual that is “extreme”, in that it is “exceptional and overwhelming” and irreversible or incapable of being mitigated. In this way, the bill is designed to make it harder to bring human rights claims in the UK courts, and makes it less likely that such claims will succeed.

It is difficult to see this as an “enhancement” of human rights protection, though. Paradoxically, the Bill of Rights may lead to more claimants being forced to take their cases to the European Court of Human Rights (ECtHR) in Strasbourg – with all the cost and inconvenience that will entail (if claimants can afford it). 

Indeed, this sets up a potential conflict between the UK and the ECHR: if such claims succeed in the ECtHR, the government will either have to comply with its rulings (thus, presumably, undermining the whole point of the bill), or defy them (thus putting the UK in breach of its international law obligations under the Convention).

And whatever else happens, the complexity of the bill and the extent of the changes it makes is bound to lead to a whole round of litigation and plenty of work for us lawyers (activist, woke or otherwise).

[See also: Doesn’t the government know that leaving the ECHR would breach the Good Friday Agreement?]

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