The government has dropped the Bill of Rights Bill so this guide is no longer applicable. We will update the website when the Ministry of Justice has confirmed its next steps.
By Tim Spencer-Lane
The government has introduced the Bill of Rights Bill to replace the Human Rights Act 1998 (HRA 1998) with a new domestic framework for the European Convention on Human Rights (ECHR).
Though the bill would repeal the HRA 1998, it would give effect to the same rights, set out in the ECHR, to which the UK would remain a signatory. These include:
- Article 2 (the right to life)
- Article 3 (freedom from torture and inhumane or degrading treatment)
- Article 5 (right to liberty and security)
- Article 8 (respect for private and family life)
- Article 14 (protection from discrimination in respect of ECHR rights)
Interpretation of ECHR rights
These rights have would have effect under the bill subject to any “designated derogation or reservation”. The bill makes wide-ranging provisions concerning their interpretation.
It states the UK Supreme Court is the “ultimate judicial authority on questions arising under domestic law in connection with the Convention rights” (clause 3). This is intended to recognise the sovereignty of Parliament and the autonomy of domestic courts, in relation to case law under the European Court of Human Rights in Strasbourg. In its response to a recent consultation on reforming human rights law, the government said the domestic courts had, at times, gone too far in following “virtually every Strasbourg decision”.
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In relation to Strasbourg case law, the bill says that a court:
- must not adopt an interpretation of an ECHR right that expands the protection conferred by that right unless it has no reasonable doubt that the Strasbourg court would adopt that interpretation if the case were before it; but
- subject to that, may adopt an interpretation of a right that diverges from Strasbourg jurisprudence.
In addition, the courts should give:
- “great weight” to freedom of speech under Article 10, except in certain specified cases;
- the “greatest possible weight” to the importance of reducing the risk to the public from those subject to custodial sentences, and
- the “greatest possible weight” to Parliament’s responsibility for determining the appropriate balance as between different policy aims and rights, including when considering the margin of appreciation.
In respect of the third category, the intention is to ensure great weight is given to Parliament’s view of the public interest (which might differ from Strasbourg’s).
The ECHR places both negative and positive obligations on the State. ‘Negative obligations’ prevent the State from taking action which interferes with an individual’s ECHR’s rights. ‘Positive obligations’ require the State to take proactive action to avoid or prevent interferences with ECHR rights. The government’s view is that positive obligations “can skew operational priorities, and require public services to allocate scarce resources to contest and mitigate legal liability”.
The bill therefore provides that the courts are unable to adopt new interpretations of ECHR rights that impose positive obligations on public authorities (clause5). In other words, the court would not be able to find a positive obligation to exist which was not recognised prior to the commencement of the bill, or reinstate a pre-commencement interpretation which had subsequently been overturned.
Existing positive obligations would be retained. However, in deciding whether to apply a pre-existing positive obligation, the domestic courts would have to give “great weight” to the need to avoid applying an interpretation which would have certain specified effects, including:
- an impact on the ability of a public authority to perform its functions;
- conflicting with or otherwise undermining 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;
- a requirement for an inquiry or other investigation “to a standard that is higher than is reasonable in all the circumstances”, and
- affecting the operation of primary legislation.
Section 3 of the HRA 1998 requires that courts and public authorities must interpret and give effect to legislation in a way that is compatible with the ECHR. The Bill of Rights Bill would repeal this provision. The government believes that section 3 has resulted in an expansive approach with courts adapting legislation, rather than merely interpreting it.
Instead, the bill would expand the ability of the courts to make declarations of incompatibility. This is where a court considers that part of an Act of Parliament is incompatible with the ECHR. A declaration of incompatibility does not affect the validity, operation or enforcement of the law. Instead, Parliament must decide whether it wishes to amend the law. The bill would extend this to allow declarations of incompatibility in respect of subordinate legislation (clause10). The government believes that declarations of incompatibility recognise the democratic role of Parliament, by “facilitating dialogue between the courts and Parliament”.
Acts of public bodies
The bill maintains the position in the HRA 1998 that it is unlawful for a public authority to act, or fail to act, in a way which is incompatible with an ECHR right (clause12). This provision does not apply, however, where either:
- as a result of primary legislation, the authority could not have acted differently, or
- the authority was acting to give effect or to enforce primary or subordinate legislation that are incompatible with ECHR rights.
Bringing human rights claims
The bill would introduce a requirement for court permission to bring a human rights claim against a public authority. This would include a requirement that a claimant must have suffered a “significant disadvantage” in accordance with Article 35 of the ECHR (clause15). If the claimant could not demonstrate a significant disadvantage, they would only be granted permission if the court considered it appropriate for reasons of wholly exceptional public interest. This is a higher threshold for permission than the current one for judicial review proceedings, where the claimant has to demonstrate an “arguable case”.
Judicial remedies for rights breaches
It would continue to be the case that where an act of a public authority were found to be unlawful, the court could grant a remedy that it considered “just and appropriate” (clause17). In considering whether an award of damages and the amount were “just and appropriate”, the court would have to consider all the circumstances of the case, including how serious the effects of the unlawful act were and the impact on the provision of public services (clause18).
Derogations from ECHR rights
The bill provides for derogations by the UK from an article of the ECHR or any protocol to the ECHR by regulations, meaning they would not apply for a period of up to five years (clause 27).
Interim measures from Strasbourg
Interim measures issued by the Strasbourg court are not to be considered when a court determines rights and obligations in domestic law, including when considering whether to grant relief where this might affect the exercise of a Convention right (clause 24).
Implications for social work
The bill is likely to generate significant debate in Parliament and may well be subject to amendment (both from government and opposition). However, as currently drafted, the bill would clearly have a major constitutional impact across the UK, not least because of the repeal of the HRA 1998 and the establishment of a new human rights framework.
One of the major constitutional issues will be how the bill would impact on the UK’s status as a signatory to the ECHR. The bill would explicitly permit courts to diverge from Strasbourg case law, which the UK is required to observe under Article 1 of the ECHR. This is one of the many areas that is likely to be under close scrutiny during the passage of the bill.
For social workers, the impact is difficult to predict. Local authority social workers would continue to be required to comply with the rights contained in the ECHR. However, what those rights would look like under the bill is not altogether obvious and may only become apparent once the courts start deciding cases under the new legislation. Nevertheless, it is difficult to avoid the conclusion that the outcome would be a more restrictive judicial interpretation of ECHR rights.
In the past, the positive obligations of the ECHR have had a major impact on social work practice. Examples include the recognition under Article 5 of ‘private’ deprivations of liberty in family homes, and the positive obligations under Article 8 to secure rights to the home, family and physical and psychological integrity. Under the bill, new positive obligations would not be on the agenda, but it is also possible that a more restrictive interpretation would be taken of existing positive obligations.
Finally, is important to recognise that under the bill it may become more difficult to bring human rights claims to challenge local authorities. If this were the case, this would directly impact on service users.
Tim Spencer-Lane is a lawyer who specialises in mental capacity, mental health and social care law and legal editor of Community Care Inform