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A New Bill of Rights and Repeal of the Human Rights Act

In June 2022 Dominic Raab introduced in Parliament a draft Bill of Rights. If enacted this Bill will repeal the Human Rights Act 1998 and provide a new mechanism for the domestic enforcement of rights. In the coming months the Centre for Public Law will be publishing reflective responses to the proposed Bill. This webpage provides information on the background to this Bill and the Centre’s involvement in the Consultation exercises that preceded the Bill.

European Convention on Human Rights

In response to the atrocities committed during the Second World War, the European Convention on Human Rights emerged under the auspices of the Council of Europe. The UK was one of the ‘founding fathers’ of the Council of Europe, with Winston Churchill at the forefront of its creation:

"The dangers threatening us are great but great too is our strength, and there is no reason why we should not succeed in achieving our aims and establishing the structure of this united Europe whose moral concepts will be able to win the respect and recognition of mankind, and whose physical strength will be such that no one will dare to hold up its peaceful journey towards the future." Winston Churchill, Strasbourg (12 August 1949)

The UK, represented by Sir David Maxwell-Fyfe, was also highly involved in drafting the Convention, and when the Convention opened for signature in Rome on the 1st November 1950, the UK was the first state to ratify the Convention. The rights included – the right to life, prohibition on torture and inhuman and degrading treatment and punishment, prohibition on slavery, servitude, forced and compulsory labour, right to liberty, right to a fair trial, right to private life, family life, home and correspondence, right to freedom of expression, right to freedom of association and assembly, right to freedom of religion and belief, right to marry and right of non-discrimination.

The European Convention on Human Rights provided for international legal obligations and the development of the European Court of Human Rights in Strasbourg provided an international mechanism for protecting rights. This enabled individuals and states to bring proceedings against the UK to the Court.

Human Rights Act 1998

Yet whilst the European Convention on Human Rights and the Strasbourg Court provided international oversight there was a lack of domestic protection as the rights could not be enforced by our domestic courts. The impact of this was that individuals had to exhaust all domestic legal avenues and then take proceedings to Strasbourg. This was both time consuming and expensive for all parties – both individuals and the state.

The Human Rights Act was thus enacted to enable our courts to resolve rights disputes. It did not allow the courts to strike down Acts of Parliament.

2020-2021 Independent Human Rights Act Review

The Conservative party has long campaigned for repeal of the Human Rights Act. The Independent Human Rights Act Review (IHRAR) was established in December 2020 to examine the operation of the Human Rights Act 1998. A call for evidence was issued and in Spring 2021 CPL hosted a series of seminars at which it discussed the questions raised by the consultation. This culminated in CPL’s March 2021 Response to the initial IHRAR consultation in which we argued that the HRA operates effectively and that it must be preserved in its current form. As part of that initiative CPL also co-hosted a roadshow for the Independent Human Rights Act Review together with the University of Oxford.

In December 2021, the IHRAR published its report. It highlighted the need for greater public ownership of human rights and civic engagement and recommended some amendments to the Human Rights Act 1998 but it did not propose reducing the level of protection accorded to rights.

The IHRAR cited evidence from CPL in its report, particularly relating to dialogue between the UK courts and the European Court of Human Rights, the importance of recognising that Parliament itself had authorised courts to provide a stronger protection of rights when interpreting legislation, and recognising the consequences for devolution were the UK courts to be able to strike down Acts of the devolved legislatures, but not strike down delegated legislation enacted by UK Ministers.

2021 Joint Committee on Human Rights Consultation

Alongside the IHRAR Review the Joint Committee on Human Rights also engaged in a consultation process about the issues under review. The Joint Committee published its report in July 2022 which came to the same conclusion as CPL namely that "there is no case for changing the Human Rights Act". CPL submitted evidence to that consultation which was cited in the Joint Committee’s Report.

March 2022 Modern Bill of Rights Consultation

The Government has not been deterred by the absence of a mandate in the Independent Review, nor in the Joint Committee Report. A further Government Consultation was launched the same day that the report of the Independent Review was published. It contained the Government’s response to the Review, and a call for evidence on questions relating to the potential reform of the Human Rights Act 1998. At the time Sir Peter Gross (Chair of the Independent Review) stated that the Consultation could not properly be called a 'responsive document' to the Independent Review's report.

CPL engaged in an extensive consultation process in response to the Modern Bill of Rights Consultation during which it held six seminars discussing in detail the various elements of the Government’s proposals. 30 Faculty members and associates were involved in producing a report on the modern Bill of Rights in March 2022 which drew on their extensive knowledge of the Human Rights Act 1998 (HRA), the European Convention on Human Rights, Constitutional and Administrative law, International law, as well as comparative law. All 30 experts ranging from Emeritus Professors through to graduate research students were unanimous in the view that if the Government implements its proposals, this will ultimately accord less protection to rights and that the proposals were impossible to square with the Government’s purported full commitment to the European Convention on Human Rights.

June 2022 Rule 39 Rwanda Deportation

Since then a further development has contributed to the impetus for the proposed Bill, namely the European Court of Human Rights’ Rule 39 in response to the Government’s attempt to send as Asylum Seeker to Rwanda before legal proceedings were exhausted in the UK.

The background to this is that in April 2022 the Government entered into a Memorandum of Understanding for the provision of an Asylum Partnership Arrangement in Rwanda, the impact of which is that the United Kingdom will send asylum seekers to Rwanda. This has been the subject of widespread criticism, in particular concerns have been raised by the United Nations High Commissioner for Refugees.

Nevertheless, the first flight was scheduled to leave the UK on 14 June. Various legal challenges followed which culminated in an application to the European Court of Human Rights. The Court granted an urgent interim measure under Rule 39 on 13 June 2022. Interim measures are only granted on an exceptional basis where applicants face a real risk of serious and irreversible harm and they are granted without prejudging the merits of the issue.

The Court’s decision was that the asylum seeker, in respect of whom there was medical evidence that he may have been the victim of torture, should be permitted to remain in the UK for three weeks after legal options are exhausted.

"in the interests of the parties and the proper conduct of the proceedings before it, to indicate to the Government of the United Kingdom, under Rule 39, that the applicant should not be removed until the expiry of a period of three weeks following the delivery of the final domestic decision in the ongoing judicial review proceedings…

The Court had regard to the concerns identified in the material before it, in particular by the United Nations High Commissioner for Refugees (UNHCR), that asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status as well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient enquiry gave rise to “serious triable issues”. In light of the resulting risk of treatment contrary to the applicant’s Convention rights as well as the fact that Rwanda is outside the Convention legal space (and is therefore not bound by the European Convention on Human Rights) and the absence of any legally enforceable mechanism for the applicant’s return to the United Kingdom in the event of a successful merits challenge before the domestic courts, the Court has decided to grant this interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to first consider those issues."

The Prime Minister responded to this ruling by accusing lawyers of "effectively…abetting the work of the criminal gangs" This prompted widespread concern amongst legal practitioners and the following joint statement from the Bar Council and the Law Society.

"Legal challenges ensure government is acting lawfully, following laws agreed by parliament.

"It is misleading and dangerous for the prime minister to suggest lawyers who bring such legal challenges are doing anything other than their job and upholding the law. Anyone at risk of a life-changing order has a right to challenge its legality with the assistance of a lawyer, who has a duty to advise their client on their rights.

"The Bar Council and Law Society of England and Wales together call on the Prime Minister to stop attacks on legal professionals who are simply doing their jobs."

Bill of Rights BillThe Bill of Rights Bill

On 22 June 2022 the Government proposed a Bill to reform the law relating to Human Rights.