Joint Committee publishes damning report on Bill of Rights Bill

The Joint Committee on Human Rights has published its report on the Bill of Rights Bill, and urged the government to reconsider many of its proposals.

The bill would create large scale uncertainty and weaken the ability of individuals to enforce their rights, warned the Committee. It said the proposed reforms – including changes to how the courts interpret rights, read legislation and award damages – would make it harder for people to enforce their rights. The Committee said certain groups would find it more difficult to bring cases, which would undermine the universality of human rights.

The Committee fears changes to the way the courts interpret human rights would result in reliance on the original 1950s text of the European Convention of Human Rights, rather than how human rights have developed to reflect the modern world.

It said the removal of the courts’ ability to read legislation so it is compatible with human rights would deprive individuals of important protection and risk uncertainty through the abandonment of decades of case law.

The Committee said the bill would also impact the application of positive obligations, which require public bodies to take action to protect rights. It would prohibit the courts from applying new positive obligations arising from judgments of the European Court of Human Rights (ECHR) and limit the application of current positive obligations if, for example, they impact the resources of public authorities.

The Committee concluded the legislation would make it more likely that people would need to go to the ECHR to enforce their rights and more adverse judgments would be likely to be made against the UK.

The Committee is concerned courts would be required to overlook important safeguards in urgent situations. Currently, the ECHR can issue interim measures to put a temporary halt on any countries taking action which could breach human rights until properly assessed. However, the bill would instruct public authorities and courts to ignore these measures.

There is also concern the bill may enable the government to evade liability for human rights infringements which occur during overseas military operations. The Committee has argued any change related to how Convention rights are applied to military operations overseas should be taken by parliament, following full scrutiny and should proceed only if parliament is satisfied such action would comply with the UK’s international obligations.

The government has argued the bill would “rebalance” the constitution and protect the sovereignty of parliament. However, the Committee said the bill appears to ‘tip the balance’ in the state’s favour with regard to any allegations of human rights violations. It includes a clause that would require courts to “give great weight” to protection of freedom of speech; however, the Committee said it is unclear how this would be applied in practice, it excludes other forms of expression, and it is likely to upset the balance with other Convention Rights.

Another clause has been specifically designed to protect deportation legislation from legal challenge on the basis it is incompatible with the right to private and family life. The Committee found this clause particularly concerning as it extinguishes the right to private and family life for affected persons in all but the rarest of cases. The Committee has called for serious reconsideration of this provision given its likely incompatibility with the Convention.

Given the impact of the bill on all home nations, and the centrality of universal human rights to the devolution settlements and the Good Friday Agreement, the Committee believes reform should not be pursued without the consent of the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly.

Chair of the Joint Committee on Human Rights, Joanna Cherry KC MP, said: “Human Rights are universal. A Bill of Rights should reaffirm and reinforce the fundamental rights that protect everyone in the UK, but this Bill does nothing of the sort. Instead, it removes and restricts certain human rights protections that the Government finds inconvenient and prescribes a restrictive approach to the interpretation and application of the European Convention on Human Rights in the courts of our domestic legal systems.

“We are also very concerned about the adverse impact on the constitutional arrangements of the devolved nations and the Good Friday Agreement”, she added.

“The end result, if the Bill is enacted in its current form, will be more barriers to enforcing human rights, more cases taken to Strasbourg and more adverse judgments against the UK. Decades of precedent and case law, that the UK still plays a key role in developing, would be abandoned, leading to legal uncertainty and litigation.

“We have called on the Government to reconsider the vast majority of the clauses of the Bill. However, there is such little appetite for these reforms and the impact is likely to be so damaging to human rights protection in the UK it may be more sensible to scrap the Bill in its entirety,” she concluded.

The Association of Personal Injury Lawyers (APIL) has urged ministers to take on board the Committee’s criticism of the proposed reforms. Commenting on the Committee’s advice to reconsider or remove a clause to introduce a ‘permission stage’ for human rights claims, APIL president John McQuater said: “In fact, reconsidering the clause is not enough, it must be scrapped.

“A permission stage would force claimants to show that they have suffered a ‘serious disadvantage’ before they can proceed,” he explained.

“If the clause remains, it sends a clear message from the Government that some human rights breaches are acceptable. Human rights are universal, and no breach should ever be considered ‘acceptable’.”

McQuater added: “The Human Rights Act is essential in delivering justice for those who rely on it as a route to redress, including bereaved families and people who have suffered sexual abuse, physical abuse, or serious neglect. Under the proposed legislation, they will have to jump through unreasonable hoops to have their cases heard. There will be people whose human rights have been breached, but who will still be denied access to the courts.

“As a whole, the Bill of Rights Bill undermines the UK’s commitment to the importance of human rights. Whether the Government is listening to the outpouring of opposition on all elements of the legislation remains to be seen. We live in hope,” he concluded.