Update: What Is The Bill Of Rights And What Will Happen Next?
In June 2022 the government under Boris Johnson introduced the Bill of Rights, purporting to “deliver on our manifesto commitment to overhaul the Human Rights Act and replace it with a Bill of Rights”. The bill is Dominic Raab’s pet project, initially proposed under David Cameron and revised under Boris Johnson before more recently being scrapped by Liz Truss. Rishi Sunak, the latest on the Conservative conveyor belt, promised to bring the bill back. However, recent reports suggest it may be deprioritised. It has been a rollercoaster for the bill since its infancy, but why is it so controversial and what’s the most recent update?
What is the Bill of Rights and what happens to the Human Rights Act?
The Bill of Rights was a new bill introduced in 2022, with the intention of repealing and replacing the 1998 Human Rights Act (‘HRA’), which incorporates the European Convention of Human Rights (‘ECHR’) into UK law. If the HRA is the house we have built to protect civil liberties in the UK then the ECHR, and by extension cases decided by its court in Strasbourg, is the foundation upon which it stands. It is the bedrock upon which many civil cases are brought, and criminal prosecutions defended by practitioners at Hodge Jones and Allen and many other firms.
The bill is designed to give legal supremacy to the UK Supreme Court and makes it explicit that UK courts can disregard rulings from Strasbourg. It slams the “elastic interpretations” of the ECHR and ostensibly sets out to “reinforce our tradition of liberty while curtailing abuses of human rights, restoring common sense”.
In reality, its purpose is to allow the executive branch (government) to have an influence in the way that the judiciary (courts and judges) interpret human rights law. The bill includes an initial permission stage at which the court will decide whether the person has suffered a “significant disadvantage” to justify proceeding. This will be a subjective assessment at the outset of the case, and is therefore vulnerable to the bias and prejudices of what remains a homogenous senior judiciary.
Although the ECHR and Strasbourg jurisprudence will not be rejected in its entirety, the proposed bill marks a deliberate shift away from these institutions and settled law in favour of an application of “common sense”; common only insofar as the UK can be seen to be united on issues of immigration, protest, structural racism, entitlement to privacy and protection from arbitrary state action – so not at all.
A practical example of the potentially devastating effect of the proposed bill (and its non-coincidental reappearance on the political agenda) would be its application to cases of foreign nationals hoping to achieve settled status. The justice department has made evident that the bill is designed to raise the threshold for anyone resisting deportation on grounds of their human rights such as entitlement to family life. The bill attacks Article 8 of the ECHR on this very point, stating that no deportation provision can be found to be incompatible with the right to family life unless the court finds that the person has suffered harm “so extreme as to override the paramount public interest in removing them from the United Kingdom”. The bill is unflinching in its assertion that it is entirely acceptable for non-British people (including children) to suffer harm up to this ‘extreme’ threshold without engaging their human rights.
This is a clear dilution of fundamental rights, designed to prioritise political agendas and prevent the Home Office being thwarted the next time a plane is scheduled to Rwanda.
There is a wider threat than just to the UK’s domestic human rights framework should the bill come to pass. International human rights principles are grounded in the example set by more liberal countries being held to account, setting a minimum standard and applying international pressure to countries with more authoritarian track records. By stepping out of this agreement, the UK encourages other countries to splinter into a disparate set of rules and interpretations of liberty at severe individual cost.
What’s going on now?
The latest on the Bill of Rights is that it may be axed again, counter to Sunak’s promise that it would be pushed forward during his term. It has been reported that the former justice secretary Robert Buckland recommended its de-prioritisation, as it is so controversial it is likely to take up significant time in Parliamentary debate and lead to stagnancy in other areas.
The bill was due to have its second reading in September. So far, it has not yet begun to be debated by MPs and there is no set date to do so. Practitioners and academics continue to watch on with trepidation in the hope that it be withdrawn, or at the least significantly reformed.
As 2022 has drawn to a close, over six months since it was introduced to Parliament on 22nd June 2022, the future of the Bill of Rights remains unclear. However, with the Public Order Bill progressing through Parliament and having its own disturbing inroads into the human rights of protestors, it is important not to underestimate the regressive approach to individual liberties adopted by the current government.