The Bill is accompanied by an 11 page memorandum - bill-rights-echr-memo.pdf (publishing.service.gov.uk)
For a look at Clauses 1 to 9 please see this earlier post - Law and Lawyers: Human Rights protection in the UK ~ the proposed Bill of Rights - No. 2 (obiterj.blogspot.com)
This post takes a closer look from Clause 10 to 24 of the Bill. The post concludes with a brief summary of the remainder of the Bill.
Clause 10 - Declaration of incompatibility
Where a court is satisfied that a provision of primary legislation is incompatible with a convention rights then the court is empowered to make a declaration of incompatibility.
Where a court is satisfied that a provision of subordinate legislation is incompatible with a convention right AND the court does not quash the provision or declare it invalid because of the incompatibility then the court may make a declaration of incompatibility.
A declaration will not affect the validity, continuing operation or enforcement of the provision in respect of which it is made and is not binding on the parties to the proceedings in which it is made.
"Court" means, as is the case with the HRA 98, (a) the Supreme Court; (b) the Judicial Committee of the Privy Council; (c) the Court Martial Appeal Court; (d) in Scotland— (i) the High Court of Justiciary sitting otherwise than as a trial court, or (ii) the Court of Session; (e) in England and Wales or Northern Ireland, the High Court or the Court of Appeal; (f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Chancellor of the High Court or a puisne judge of the High Court.
Clause 11 - provides a right for the Crown to intervene where a court is considering whether to make a declaration of incompatibility. This is also the case with the HRA 98.
Clause 12 - Acts of public authorities
Under Clause 12 it will continue to be unlawful for a public authority to act in a way which is incompatible with a convention right. This will NOT apply if -
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently, or
(b) the authority was acting so as to give effect to or enforce - (i) one or more provisions of primary legislation that are incompatible with the Convention rights, or (ii) one or more provisions of subordinate legislation that are incompatible with the Convention rights where (disregarding the possibility of revocation) primary legislation prevents removal of the incompatibility.
Clause 13 Proceedings
.PNG)
Clause 14 Overseas military operations
Clause 14 states - Section 13 does not confer a right on a person to bring proceedings, or rely on a Convention right, in relation to an act (or proposed act) of a public authority which is done (or is proposed to be done) outside the British Islands in the course of overseas military operations.
Further, Section 13 does not confer a right on a person to bring proceedings, or rely on a Convention right, in relation to an act (or proposed act) of a public authority which is done (or is proposed to be done) within the British Islands where— (a) the act is done (or proposed to be done) wholly for the purposes of overseas military operations, and (b) at the time the act is (or would be) done the person is (or would be) outside the British Islands.
Clause 14 contains some further restrictions but also states - Clause 14(5) - Nothing in this section prevents any person from relying on a Convention right in any criminal proceedings.
The clause also defines the terms "overseas military operations" and "Her Majesty's forces"
Clause 15 - Permission required to bring proceedings
No proceedings may be brought under section 13(2)(a) may be brought by a person in relation to an act (or proposed act) of a public authority unless the person has obtained permission from the court in which the proceedings are to be brought.
"Proceedings" does not include -
(a) proceedings brought in Scotland or Northern Ireland on a petition or application for judicial review (as to which see instead section 16);
(b) proceedings before the tribunal established under section 65 of the Regulation of Investigatory Powers Act 2000 (the Investigatory Powers Tribunal);
(c) proceedings relating to a deportation order made by the Secretary of State in respect of a foreign criminal.
The court may grant permission only if it considers that -
(a) the person is (or would be) a victim of the act (or proposed act), and (b) the person has suffered (or would suffer) a significant disadvantage in relation to the act (or proposed act). However, the court may disregard the significant disadvantage requirement if it considers that it is appropriate to do so for reasons of wholly exceptional public interest,
RULES will make further provision about permission and appeals under section 15.
For the purposes of section 15, a person has suffered (or would suffer) a “significant disadvantage” in relation to an act (or proposed act) only if the person would be regarded as suffering significant disadvantage for the purposes of Article 35 of the Convention (admissibility criteria) if proceedings were brought in the European Court of Human Rights in respect of that act (or proposed act).
Clause 16 - Judicial Review: sufficient interest
Clause 16 refers us back to Clause 13(3)(a).
Clause 16(2) will apply to -
(a) an application for judicial review in Northern Ireland that is made by virtue of section 13(3)(a);
(b) an application for judicial review in England and Wales, or in Northern Ireland, that is not made by virtue of section 13(3)(a), so far as it relies on a Convention right or rights.
Clause 16(2) states - The applicant is to be taken to have a sufficient interest in relation to the act (or proposed act) in question only if the person is (or would be) a victim of the act (or proposed act).
Clause 16(3) then states that Clause 16(4) applies in relation to -
(a) a petition for judicial review in Scotland that is made by virtue of section 13(3)(a);
(b) any other petition for judicial review in Scotland so far as it relies on a Convention right or rights.
In such Scottish cases, Clause 16(4) provides that - The applicant is to be taken to have title and interest to sue in relation to the act (or proposed act) in question only if the person is (or would be) a victim of the act (or proposed act).
Clause 17 Judicial remedies: general
If a court finds that an act (or proposed act) of a public authority is (or would be) unlawful under section 12(1), the court may, subject to subsection (2) and section 18, grant such remedy as it considers just and appropriate.
Clause 17(2) states - the court (a) may grant a remedy other than damages only if it is within the powers of the court to grant that kind of remedy; (b) may award damages only if the court has power to award damages, or order the payment of compensation, in civil proceedings.
Clause 17(3) is a power to make rules for tribunals. In Parliament, such Rules will be subject to the affirmative procedure.
Clause 18 Judicial remedies: damages
(1) A court may award damages to a person under section 17 only if -
(a) the person has suffered loss or damage arising from the unlawful act, and
(b) the court is satisfied that it is unable to grant a remedy that is just and appropriate without making an award of damages.
(2) Subsection (1) does not apply in relation to an unlawful act which is incompatible with the Convention right set out in Article 5 of the Convention (right to liberty and security).
(3) The court must not award a person an amount of damages which is greater than the amount which, in the opinion of the court, the European Court of Human Rights would award that person if the case were before it.
Clause 18 then continues to provide further provisions relating to awards of damages - see Clauses 18(5) to 18(7).
The court must take into account all the circumstances of the case including, in particular -
(a) any conduct of the person that the court considers relevant (whether or not the conduct is related to the unlawful act);
(b) anything done by public authority to avoid acting incompatibly with the Convention right in question;
(c) how serious the effects of the unlawful act are;
(d) any other remedy granted in relation to the unlawful act (by that or any other court);
(e) the consequences of any other decision (of that or any other court) in respect of the unlawful act.
The court must also take into account, and give great weight to, the importance of minimising the impact that any contemplated award of damages would have on the ability of the public authority, or of any other public authority, to perform its functions.
Those appear likely to be severe limitations on the amounts that will be awardable in damages.
Clause 19 Judicial acts
Clause 19(1) - Proceedings under section 13(2)(a) in respect of a judicial act may be brought only -
(a) by exercising a right of appeal,
(b) on an application (in Scotland a petition) for judicial review, or
(c) in such other forum as may be prescribed by rules.
Clause 19 contains additional provisions not considered further here.
Clause 20 Limits on court’s power to allow appeals against deportation
(1) This section applies where -
(a) the Secretary of State decides to make a deportation order in respect of a foreign criminal (“P”), and
(b) P appeals to the relevant tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002 on the grounds that removing P from or requiring P to leave the United Kingdom in accordance with the deportation order would be unlawful under section 12 of this Act.
(2) So far as such appeals are by reference to the right to a fair trial, the relevant tribunal must dismiss the appeal unless it considers that removing P from or requiring P to leave the United Kingdom in accordance with the deportation order would result in a breach of the right to a fair trial so fundamental as to amount to a nullification of that right.
(3) For the purposes of subsection (2), in a case where the Secretary of State’s decision to make a deportation order in respect of P was informed by deportation assurances, the relevant tribunal must -
(a) presume that the Secretary of State’s assessment of those assurances is correct, and
(b) accordingly— (i) treat the assurances as determinative of the appeal, and (ii) dismiss the appeal, unless the relevant tribunal considers that it could not reasonably conclude that the assurances would be sufficient to prevent a breach of the right to a fair trial so fundamental as to amount to a nullification of that right.
Clause 21 Limit on court’s power to require disclosure of journalistic sources
(1) No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, a journalistic source unless the court is satisfied— (a) that the disclosure is necessary -
(i) in the interests of justice, or
(ii) in the interests of national security or for the prevention of crime or disorder, and
(b) that there are exceptional and compelling reasons why it is in the public interest for the disclosure to be made.
(2) In determining whether there are exceptional and compelling reasons why it is in the public interest for the disclosure to be made, the court must give great weight to the public interest that exists in protecting journalistic sources, including the fact that their protection supports the Convention right set out in Article 10 of the Convention (freedom of expression).
(3) In this section— “court” includes any body exercising the judicial power of the State (and “legal proceedings” is be construed accordingly); “journalistic source” means a person who supplies information to another person - (a) intending that other person to use the information for the purposes of journalism, or (b) knowing that the information is likely to be used for those purposes.
Clause 22 Limit on court’s power to grant relief that affects freedom of expression
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right set out in Article 10 of the Convention (freedom of expression).
(2) If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied -
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are exceptional and compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) In this section “relief” includes any remedy or order (other than in criminal proceedings).
Clause 23 Freedom of thought, conscience and religion
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise by a religious organisation of the Convention right set out in Article 9 of the Convention (freedom of thought, conscience and religion).
(2) The court must have particular regard to the importance of the right.
(3) The reference in subsection (1) to a religious organisation includes a reference to its members collectively.
Clause 24 Interim measures of the European Court of Human Rights
(1) For the purposes of determining the rights and obligations under domestic law of a public authority or any other person, no account is to be taken of any interim measure issued by the European Court of Human Rights.
(2) Subsection (3) applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of a Convention right.
(3) The court may not have regard to any interim measure issued by the European Court of Human Rights.
Clause 24 appears to have been added to the bill following annoyance within government that the European Court of Human Rights issued interim measures in the Rwanda deportation case - discussed in this previous post - Law and Lawyers: Removal to Rwanda ~ Interim measures granted by European Court of Human Rights (obiterj.blogspot.com)
** The remainder of the Bill **
Clause 25 Duty to notify Parliament of failure to comply with the Convention
(1) Subsection (2) applies if -
(a) the European Court of Human Rights finds, in its final judgment in a case to which the United Kingdom is a party, that the United has failed to comply with an obligation arising under the Convention, or
(b) the United Kingdom, pursuant to rules of that court, makes a declaration acknowledging that the United Kingdom has failed to comply with such an obligation.
(2) The Secretary of State must lay before Parliament notice of the court’s judgment or (as the case may be) the United Kingdom’s declaration.
Clause 26 is the power to take remedial action - (see also Schedule 2)
Clauses 27, 28 and 29 together with Schedule 3 are concerned (respectively) with derogation, reservations , and a requirement that designated derogations and reservations to be set out in Schedule 3. There is a power for the Schedule to be amended by Regulations.
Clause 30 deals with judicial appointments from the UK to the European Court of Human Rights.
Clauses 31, 32 and 33 are concerned with Rules of Court, and the procedure for making Regulations.
Clause 34 defines public authority -
(1) In this Act (apart from Schedule 1) “public authority” includes— (a) a court, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(2) In relation to a particular act, a person is not a public authority by virtue only of subsection (1)(b) if the nature of the act is private.
Clause 35 defines the term "Strasbourg jurisprudence"
Clause 26 is an Interpretation provision.
Clauses 37 Consequential and minor amendments - see also Schedule 5
Clause 38 Application and extent
Clause 39 Commencement
Clause 40 Power to make transitional or saving provisions - this clause is (rightly) giving rise to concern - Stefan Theil: Henry VIII on steroids – executive overreach in the Bill of Rights Bill – UK Constitutional Law Association
Clause 41 Short Title
The 5 Schedules are
(1) Convention rights - the rights are set out as required by section 2(3);
(2) Remedial Regulations;
(3) Designated Reservation,
(4) judicial pensions, and
(5) Consequential and minor amendments (including repeal of the Human Rights Act 1998).
24 June 2022
No comments:
Post a Comment