On 22 June 2022, the UK Government published its ‘Bill of Rights’ which is designed to replace the Human Rights Act 1998 (HRA). The Government’s position, as outlined by Justice Secretary Dominic Raab, is that the present human rights framework is overly expansive, undermines the democratically legitimate power of both Government and Parliament, and has resulted in the discrediting of human rights in the public imagination.

“The Government argues that the current approach, therefore, poses a threat to the protection of human rights at all”

The proposals have, however, been met with strong opposition from the legal profession generally. For example, former President of the Supreme Court Lady Hale has stated that ‘the UK Government is trying to reduce the protection given to human rights in UK Law.’

This short paper analyses the potential impact that some important aspects of the proposed bill may have on the protection of human rights in the UK. It explores an addition, a change, a removal, and something which has remained the same as in the HRA.

An Addition - Section 14 Bill of Rights

One addition which will likely have considerable impact is section 14, which removes the right for those impacted by British extra-territorial actions to rely on Convention rights in UK courts. There are two crucial doctrines to consider when determining the Government’s reasoning for including such a section: the margin of appreciation and the living instrument.

The government have been vocal critics of the living instrument doctrine, arguing it has been used to justify decisions by Strasbourg the original drafters of the Convention would not have envisaged. They believe states are not afforded enough say in the expansion and adaptation of certain rights and that Strasbourg is encroaching into state sovereignty. The margin of appreciation is meant to address this concern by allowing states a degree of flexibility where there is no European consensus on an issue. The Government contends the current approach to this is insufficient. Through the introduction of the Bill, they seek to highlight the supremacy of Supreme Court decisions and encourage divergence from ECtHR jurisprudence.

Section 14 on Extraterritorial Jurisdiction embodies these criticisms. Plainly, it removes the right for a person to rely on convention rights when they are impacted, or would be impacted, by overseas military operations. This goes against extensive Strasbourg case law. In Bankovic v Belgium - 52207/99 - (2001) ECHR 890, the court established that the Convention applies extraterritorially when a state exercises ‘effective control’ over another territory. This notion has been affirmed in many cases since, notably including Al-Skeini a.o. v the United Kingdom - 55721/07 - [2011] ECtHR in which the UK was held to have exercised authority and control over six Iraqis citizens killed.

The UK Government has voiced their disapproval of the expansion of Convention rights beyond purely territorial application, arguing Strasbourg’s use of the ‘effective control’ test lacks the necessary foundation in consensus between states parties.

“Arguably, the decision to expand the reach of rights protections in such instances should be made by elected national parliaments rather than unelected Strasbourg judges.”

It is crucial to highlight that if Section 14 is implemented, the ability of persons to rely on UK rights protections abroad would be significantly hindered, regardless of whether the Government’s arguments have any merit. This would be in direct contravention of the established case law of the ECtHR and will likely lead to an influx of cases directly to Strasbourg.

A Change - Section 2 HRA

One area of apparent change under the Bill of Rights is the relationship between UK courts and the European Court of Human Rights. Currently, s2(1)(a) of the HRA requires UK courts to ‘take into account’ Strasbourg jurisprudence, but the bill contains no equivalent provision. Instead, in s3(1), the bill designates the United Kingdom Supreme Court as the ‘ultimate judicial authority’ in interpreting the convention. While this appears to be a radical step, it may not have a significant impact in practice.

The current judicial approach to the requirement of taking Strasbourg jurisprudence into account is to recognise that this does not require total compliance. In Manchester City Council v Pinnock [2010] UKSC 45, for example, Lord Neuberger suggested it need not be followed where the reasoning of the European Court was based on misunderstanding, where there was no clear and consistent line of decisions, or where the effect of compliance would be contrary to a fundamental aspect of domestic law.

Read in more detail, the proposed bill is not dissimilar. s3(3)(a) of the Bill outlines that a court may adopt an interpretation of the Convention which expands the protection granted by UK courts provided it has no reasonable doubt that Strasbourg would do so.

“The instances in which Strasbourg jurisprudence is currently taken into account are likely to be the same instances in which UK courts would be confident in what Strasbourg would determine.”

It is also notable that this approach to the relationship with Strasbourg is not entirely at odds with the intended functioning of the Convention. Protocol 15 outlines that states themselves are primarily responsible for implementing Convention rights, enjoying a margin of appreciation in doing so, and are subject to the supervisory jurisdiction of the European Court. The Government’s contention is that the proposed s3 more accurately reflects this approach by freeing domestic courts to respect British concerns and more clearly expressing Strasbourg’s subsidiarity. Indeed, the constitutional courts of both Italy and Germany already hold that Strasbourg’s jurisprudence can be reviewed for compliance with their respective constitutions for which they are the sovereign interpreters. The explicit adoption of a similar position would not be unique amongst state parties.

Upon greater study, then, it appears this seemingly radical step would redefine the relationship between the courts rather than end it and may yet do so in a way with more political meaning than legal effect.

A Removal - Section 3 HRA

Section 3 HRA was intended to be the primary method of human rights enforcement in the UK. It is an interpretative duty, requiring courts to find legislation as compatible with convention rights “if it is possible to do so”. It is abolished under the Bill of Rights Bill. The Government’s rationale is to “rebalance” the relationship between Parliament and the courts. It claims that courts have used s3 to adapt - rather than just interpret - legislation. By removing s3, it will be for Parliament, rather than the courts, to correct any legislation that is incompatible with convention rights. Nonetheless, the vast majority (79%) of respondees to the Government’s consultation on the Bill of Rights did not wish for s3 to be repealed.

There is some merit in the Government’s claims. The current interpretative duty appears incredibly wide. As Lord Steyn noted in R v A (No.2) [2001] UKHL 25, no ambiguity is required before s3 can operate. Furthermore, words can be added or deleted from legislation to achieve compatibility. In Vanriel v Secretary of State [2021] EWHC 341,5 the Court deleted 25 words of the British Nationality Act 1981 to create a discretionary power to allow more citizenship requirements to be dispensed with in certain cases.

The opposing view, however, is that the impact of s3 has been overstated. The provision is rarely used - Powell and Needleman found just 25 uses of s3 in an eight year period. They surmise a possible reason for this is that the same result can be reached using “normal” interpretative principles, without resorting to s3. Furthermore, when s3 is used, the courts show deference to the will of Parliament. For example, in Ghaidan v Godin-Mendoza [2004] UKHL 30, Lord Nicholls explained that courts can only “go with the grain” of legislation.

“Even when more substantial changes are made to legislation using s3 HRA, courts can be said to be effecting parliamentary intention - after all, Parliament intended the interpretative duty to be used.”

Ironically, the arguments such as the low number of cases using s3 which demonstrate why the Government’s claims are unfounded, also suggest that its removal may not be so significant in practice. Therefore, the removal of the main method of enforcing convention rights may only be theoretically significant.

A Continuation - Section 4 HRA

While the s3 power of interpretation is omitted from the proposed bill of rights, the s4 power to issue a declaration of incompatibility is one element retained. As presently, the courts will be able to issue such a declaration under s10(2). The declaration will continue to have no effect on the validity or enforcement of a provision per s10(3), and a relevant minister will continue to be able to amend legislation in response by ‘remedial order’ under s26.

Despite this seeming continuity, however, this remedy is not unchanged. Without an equivalent of s3, declarations of incompatibility will no longer be a remedy of last resort. In every situation where courts can currently interpret an incompatibility away, they will only be able to declare the incompatibility and encourage the Government or Parliament to respond. The Government argues this is a positive, with determinations over resolutions moved from an appointed to an elected body. It will, however, delay access to remedies. Where courts can currently read-in compliance immediately, a response by Government or Parliament will now be required, an unavoidably slower process.

The apparent similarity is also affected by the addition of a section concerning the proper place of Parliament. Section 7 would apply where a court was determining whether to issue a declaration of incompatibility, and, if in doing so, it must decide whether the effect of a provision strikes an appropriate balance between different policy aims, different convention rights, or the convention rights of different persons. In these cases, the court must regard Parliament as having decided that the legislation in question strikes such a balance and give the ‘greatest possible weight’ to the principle that Parliament should make these decisions.

“For all its legal terminology, this is a notice for courts to back off by a Government who does not believe their interference is appropriate.”

It aims to limit judicial freedom and arguably amounts to a usurpation of the proper sphere of the judiciary.

Cumulatively, then, changes in the bill mean that the continuity of the power to declare legislation incompatible is only superficial. Relying on declarations as a primary remedy rather than a last resort will slow access to justice and discouraging courts from questioning Parliament will reduce independent oversight. If human rights protections exist to defend vulnerable minorities, these reforms do nothing to advance their place.

Conclusion

Some aspects of the proposed Bill of Rights, therefore, are likely to have more impact on rights protections in the UK than others. The proposed change to domestic treatment of Strasbourg jurisprudence, for example, may prove to be significant in a political sense rather than in its legal impact. Similarly, the infrequent use of Section 3 HRA suggests that its removal may be of more theoretical than practical consequence

Contrastingly, there is no doubt that the addition of Section 14 will reduce the protections afforded to people affected extraterritorially. Moreover, despite the retention of declarations of incompatibility, increased reliance on this due to the removal of Section 3 HRA will delay access to remedies, and Section 7 of the Bill will limit the Court’s ability to independently check Parliament.

The proposed Bill of Rights demonstrates that the Government is actively trying to limit access to Convention rights in UK courts. The Bill does not go so far as to amount to a departure of the Convention in all but name, and it is not entirely inconsistent with the Convention’s intended method of operation. Nonetheless, the removal is concerning. It will still hinder access to rights, and the UK’s relationship with Strasbourg will be redefined.