What is the Bill of Rights?
In 22 June 2022, the United Kingdom Ministry of Justice introduced the Bill of Rights to the Parliament, aiming at replacing the Human Rights Act 1998 (HRA) – an act giving effect to the rights and freedom enshrined in the European Convention of Human Rights (ECHR) in UK jurisprudence. The HRA was formulated to neutralise the pressures between Human Rights protection and the UK’s tradition of parliamentary supremacy. For instance, no UK or Strasbourg courts can eradicate an Act of Parliament; a UK court may only determine the Act ‘ECHR incompatible’ and direct the Parliament to consider a change in Law. Consequently, the Parliament owns the ultimate power to uphold or repeal an Act.
While no new rights are introduced in the Bill, it provides specific exemptions for the UK courts to deviate from precedents set in the European Court of Human Rights. In turn, legal uncertainties could arise due to the exemptions of current positive obligations identified in European case laws and the subsequent prohibition on the public bodies’ application of these obligations.
In short, the Bill runs a risk of omitting material safeguards protecting individuals in pressing situations and impairing the “universality of human rights”. Following this general introduction, the origin, rationale, and far-reaching impact of the Bill will be discovered in the coming passages.
Why is the Bill being brought forward?
This new Bill of Rights Bill has been brought forward against the backdrop of much political premise (and promise!). In both 2010 and 2015 respectively, the Conservative Party promised in its manifesto to replace the Human Rights Acts (HRA) 1998 by introducing this new Bill. Despite taking no further actions on this during the Brexit process, in 2019 it once again committed to updating the HRA.
According to the government, the Bill’s main aim is to clarify and balance the relationship between Parliament, the UK Courts and the European Court and is why it is necessary to update the legislative foundations of human rights in the UK through the introduction of this Bill.
What the government seeks to do, post-Brexit, is return the power and primacy of decision-making by Parliament to Parliament from the courts, especially in instances where competing rights and interests are at stake. This is evident by the fact that the Bill does not introduce any new rights – it gives effect to the same set of rights outlined in the European Convention of Human Rights. So, its purpose is to shift the protection offered in regard to human rights from judicial decision-making to Parliament’s discretion.
It also attempts, according to the Government, to weed out trivial cases as the Bill would significantly change the way human rights are protected and enforced in the UK. This raises a significant question – who decides what is ‘trivial’? It would bring about drastic changes to the procedure of bringing a claim on human rights law before the courts, require that judges defer to the government in regard to a wide range of areas such as decisions on deportation and what public authorities must do to protect people’s rights
The potential consequences of the Bill.
Essentially, the main consequence of the Bill, is the impact it has to an individual’s access to justice. The Bill being used as a tool to limit the accessibility to the institution of courts, restricts the protection to someone who has experienced a human rights violation. A ‘permission stage’ is being introduced, forcing claimants to evidently show that they have or will suffer ‘significant disadvantages’ in order to initiate a human rights claim.
The introduction of this enhanced stage has caused worry across the human rights community, as it could be efficient in creating an allowable category of human rights violations, rather than to offer protection to individuals who experience abuse of their rights.
Furthermore, the Bill attempts to restrict the usage of proportionality tests utilised by the courts, by forcing the courts to accept the legislation initiated by Parliament as sufficiently assessed of all matters and interests. Truly, this cannot be feasible as Parliament is unable to view each case individually with specific detail, therefore the restriction of proportionality limits government accountability, whilst deterring the enforceability of an individual’s rights.
Government argues this is necessary in order to uphold the traditional Parliamentary sovereignty, however this is supplemented by very little evidence. In fact, in a panel appointed by the government for the Independent Human Rights Act Review, it was concluded that the Human Rights Act 1998 is actively working effectively, rejecting calls for reform. It has been consistently shown that judges apply the law with impartiality, respecting the sovereignty of the Parliamentwhile also protecting individual’s rights in the process.
Therefore, it is clear to see that the Bill of Rights will depreciate the protection given to human rights, making it harder for someone who has experienced human rights violations to receive justice. This will not only affect individuals but additionally damage the reputation of the UK’s treatment to its citizens, especially the global perception on their access to justice.
By QUB Law Students: Aolani, Sana and Maegan
Date: 29th May 2023