The Bill is accompanied by an 11 page memorandum - bill-rights-echr-memo.pdf (publishing.service.gov.uk)
This post takes a closer look at Clauses 1 to 9 of the Bill but, for comparison purposes, it is helpful to remind ourselves of the main provisions in the Human Rights Act 1998 - (the HRA 98) - which has been fully in force since 1 October 2000. A further post will cover Clause 10 onwards.
Human Rights Act 1998:
The HRA 98 (section 1 and Schedule 1) defines "convention rights" by reference to the European Convention on Human Rights (ECHR).
Section 2 requires courts to take into account any judgment of the European Court of Human Rights (E Ct HR) in so far as the court considers it relevant.
Section 3 requires courts to read, as far as it is possible to do so, legislation in a way that is compatible with convention rights.
Section 4 enables certain courts to make declarations of incompatibility.
It is unlawful for a public authority to act in a way that is incompatible with convention rights (section 6). A "victim" of unlawful action can bring legal proceedings against the public authority thought to be responsible or can rely on convention rights in any legal proceedings - section 7.
The courts can grant appropriate remedies under section 8 including, sometimes, damages.
Section 10 enables Ministers to take remedial action when there is a declaration of incompatibility.
Section 11 is a safeguard for existing human rights so that a person's reliance on a convention rights does not restrict any other rights or freedom conferred on him by or under any law having effect in any part of the United Kingdom.
Section 12 is concerned with freedom of expression.
Section 13 with freedom of thought, conscience and religion.
The HRA 98 is an example of well constructed legislation which sought to enhance protection of rights within the UK whilst retaining the right of Parliament to legislate in any way it wishes.
The Act has sometimes caused problems for government anxious to conduct its activities with the minimum degree of challenge. The existence of such problems demonstrates the effectiveness of the Act in achieving its aim of enabling individuals to assert their convention rights. Instead, Ministers seeking to enhance executive power, see the Act as an obstacle.
The Bill of Rights Bill -
Clause 1 is an Introductory "scene setting" provision commencing with the statement that - "This Act reforms the law relating to human rights by repealing and replacing the Human Rights Act 1998." The clause continues by stating that, in particular, the Act clarified and rebalances the relationship between courts in the UK, the European Court of Human Rights and Parliament by ensuring -
(a) that it is the Supreme Court (and not the European Court of Human Rights) that determines the meaning and effect of Convention rights for the purposes of domestic law
(b) that courts are no longer required to read and give effect to legislation, so far as possible, in a way which is compatible with the Convention rights
(c) that courts must give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about the balance between different policy aims, different Convention rights and Convention rights of different persons are properly made by Parliament ...
It is the "affirmed" that judgments, decisions and interim measures of the European Court of Human Rights - (a) are not part of domestic law, and (b) do not affect the right of Parliament to legislate.
Clause 2 - along with Schedule 1 - defines the term "convention rights." The definition is the same as that in the HRA 98.
Clause 3 deals with Interpretation of Convention Rights and begins by stating that the Supreme Court is the ultimate judicial authority on questions arising under domestic law in connection with Convention rights.
Whether that actually alters anything is questionable. The Supreme Court of the UK is already the ultimate judicial authority for legal matters in the UK with the exception of Scottish criminal law where the High Court of Justiciary is the ultimate judicial authority. The European Court of Human Rights does not purport to be a judicial authority on domestic law but only on the convention.
A court determining a question arising in connection with a convention rights -
(a) must have particular regard to the text of the Convention right, and in interpreting the text may have regard to the preparatory work of the Convention;
(b) may have regard to the development under the common law of any right that is similar to the Convention right;
(c) must comply with sections 4 to 8.
Clause 3(3) provides that - A court determining a question which has arisen in connection with a Convention right -
(a) may not adopt an interpretation of the right that expands the protection conferred by the right unless the court has no reasonable doubt that the European Court of Human Rights would adopt that interpretation if the case were before it;
(b) subject to paragraph (a), may adopt an interpretation of the right that diverges from Strasbourg jurisprudence.
This is a depressing provision. A domestic court is restricted in its ability to expand rights protection but, conversely, is made free to go against the Strasbourg position.
Then Clause 3(4) provides that subsection (3)(a) does not prevent a court from adopting an interpretation of a Convention right where it does so as a result of complying with section 4 (freedom of speech).
Finally, clause 3(5) states that - "Evidence is to be given for the purposes of this section in proceedings before any court in such manner as may be provided by rules."
(The rule and regulation making powers will be considered later).
Clause 4 - Freedom of Speech -
Clause 4 begins by stating that - When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.
The right to freedom of speech is an important aspect of Article 10 of the convention and Clause 4 states that “the right to freedom of speech” means the Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).
Clause 4 then goes on to set out 4 occasions when the section will not apply -
(a) in criminal proceedings or to the determination (in other proceedings) of any question whether a provision of primary or subordinate legislation that creates a criminal offence is incompatible with a Convention right;
(b) to the determination of any question whether the disclosure of information would be in breach of an obligation of confidence which - (i) arises under an agreement with any person, or (ii) arises (otherwise than under an agreement) as a result of a professional relationship with any person;
(c) to the determination of any question relating to - (i) whether a person is entitled to enter, or remain in, the United Kingdom, or (ii) a person’s citizenship;
(d) to the determination of any question the determination of which affects or may affect national security.
For a view that Clause 4 will undermine free speech see
Clause 5 - Positive obligations
After commencement, the Act will prevent a court interpreting a convention right in a way that would require a public authority to comply with a positive obligation. A "positive obligation" is defined as an obligation to do any act.
The clause distinguishes between PRE-commencement interpretations of Convention rights and post-commencement interpretations. The meaning of pre-commencement is set out in Clause 5(3) to 5(5).
In deciding whether to apply a pre-commencement interpretation of a Convention right that would require a public authority to comply with a positive obligation, the court must give great weight to the need to avoid applying an interpretation that would -
(a) have an impact on the ability of the public authority or of any other public authority to perform its functions;
(b) conflict with or otherwise undermine the public interest in allowing public authorities to use their own expertise when deciding how to allocate the financial and other resources available to them, including in particular the professional judgment of those involved in operational matters;
(c) require the police to protect individuals who are involved in criminal activity or otherwise undermine the police’s ability to determine their operational priorities;
(d) require an inquiry or other investigation to be conducted to a standard that is higher than is reasonable in all the circumstances;
(e) affect the operation of primary legislation (including primary legislation relating to supply and appropriation).
Clause 5 is not entirely easy to read but the aim appears to be to enable the courts to remove fetters on the ability of public authorities to act where some pre-commencement positive obligation exists. The clause is problematic and one hopes that greater clarity will be brought about as the bill progresses through parliament.
The government's memorandum states -
The Bill of Rights will strip away vital protections – The Justice Gap
Clause 6 - Public Protection
Clause 6 will apply where - (a) a court is determining a question which has arisen as to whether a relevant Convention right of a person has been breached, and (b) the person was, at the time of the alleged breach, subject to a custodial sentence imposed in respect of an offence of which the person had been convicted.
Relevant relevant Convention right will mean any Convention right other than the Convention rights set out in ... (a) Article 2 (right to life); (b) Article 3 (prohibition of torture); (c) Article 4(1) (prohibition of slavery); (d) Article 7 (no punishment without law).
A court will be required to give the greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences in respect of which custodial sentences have been imposed.
As a possible example, imagine a prisoner challenging a Parole Board decision to keep him in custody. The court must give the "greatest possible weight" to risk to the public. Obviously, the safest decision, if there is any risk at all, will be to keep him in custody !
Clause 7 - Decisions that are properly made by Parliament
The government's concern here is based on the view that it is for Parliament to determine where the appropriate balance lies in the application of convention rights. Parliament is of course entirely free to legislate as it wishes but, in practice, the balance between competing policy aims or how convention rights apply in particular situations is not always addressed adequately in legislation.
Clause 7 will apply where -
(a) a court is determining an incompatibility question in relation to a provision of an Act, and
(b) in order to determine that question, it is necessary to decide whether the effect of the provision (whether considered alone or with any other relevant provision or matter) on the way in which the Convention rights are secured strikes an appropriate balance -
(i) as between different policy aims,
(ii) as between different Convention rights, or
(iii) as between the Convention rights of different persons; or as between any combination of matters mentioned in sub-paragraphs (i) to (iii).
In such cases, the court must -
(a) regard Parliament as having decided, in passing the Act, that the Act strikes an appropriate balance as between the matters mentioned in subsection (1)(b)(i) to (iii), and
(b) give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament.
The government memorandum states - Clause 7 requires the courts to give great weight to Parliament’s role in deciding how competing policy aims and Convention rights should be balanced. Whilst deference to Parliament is already shown by the courts, the clause codifies the court’s current practice as detailed by Lord Reed in SC1 and clarifies the balancing exercise to be undertaken - see R (SC) v Secretary of State for Work and Pensions, Equality and Human Rights Commission intervening [2021] UKSC 26
Clause 8 - Article 8 of the Convention: deportation
Clause 8 will apply where a court is considering, in relation to a decision of the Secretary of State to make a deportation order in respect of a foreign criminal (“P”), the question whether any provision of primary or subordinate Bill of Rights Bill legislation relating to deportation (a “deportation provision”) is incompatible with the right to respect for private and family life.
The clause will make it harder for such individuals to claim a right to family life in deportation cases.
No deportation provision may be found to be incompatible with the right to respect for private and family life unless the court considers that the provision requires a public authority to act in respect of P in a way that would result in manifest harm to a qualifying member of P’s family that is so extreme that the harm would override the otherwise paramount public interest in removing P from or requiring P to leave the United Kingdom.
To qualify as "extreme" the harm must be -
(a) ... exceptional and overwhelming, and
(b) ... incapable of being mitigated to any significant extent or is otherwise irreversible.
The government memorandum states -
"Clause 8 applies where a court is considering, in relation to a decision to deport a foreign national offender whether the relevant legislative provision that action is taken under is compatible with Article 8. It provides that where a court is considering a deportation provision in relation to a foreign national offender and Article 8 (right to private and family life), it may not be found incompatible unless it requires the court to act in a way that would result in such manifest harm that it would be extreme (defined as exceptional, overwhelming, and not capable of being mitigated or otherwise be irreversible).
In addition, where the harm is to someone other than a qualifying child a deportation provision will not be incompatible should it require the overall circumstances to be even more exceptional and compelling than those in relation to a qualifying child."
Deportation and Clause 8 of the Bill of Rights – Constitutional Law Matters
Clause 9 - Jury Trial
Trial by jury is an important common law right applicable to serious criminal offences. The right is, as always, subject to legislation and, for example, there is no right to jury trial for offences classed as summary only.
It is far from clear whether the clause adds anything to existing law. It appears that, for purely political reasons, the right to jury trial as been added to the Bill to make the whole edifice look more attractive.
Clause 9 states -
(1) The ways in which the right to a fair trial is secured in the United Kingdom include, in the case of a person charged with an offence, legislation under which (absent any of the circumstances mentioned in subsection (2)) the person is tried before a jury.
(2) Those circumstances are -
(a) where the person pleads guilty;
(b) where the person chooses to be tried without a jury;
(c) where the offence is prescribed by law as insufficiently serious to be required to be tried before a jury;
(d) where it is otherwise prescribed by law that the person should be tried without a jury.
(3) In this section “right to a fair trial” means the Convention right set out in Article 6 of the Convention.
Continued at Law and Lawyers: Human Rights protection in the UK ~ the proposed Bill of Rights - No. 3 (obiterj.blogspot.com)
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