By Tim Spencer-Lane
The government introduced the Bill of Rights replacing the Human Rights Act 1998 (HRA 1998) with a new national framework for the European Convention on Human Rights (ECHR).
Although 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 (protection against torture and inhuman or degrading treatment)
- Article 5 (right to liberty and security)
- Article 8 (respect for private and family life)
- Article 14 (protection against discrimination while respecting ECHR rights)
Interpretation of ECHR rights
These rights would have effect under the Bill subject to “designated waiver or reservation”. The bill contains extensive provisions regarding their interpretation.
It states that the Supreme Court of the United Kingdom is “the supreme judicial authority on questions arising under domestic law in relation to Convention rights” (clause 3). This aims to recognize the sovereignty of Parliament and the autonomy of national courts, in relation to the case law of the European Court of Human Rights in Strasbourg. In his response to a recent consultation on human rights law reformthe government said national courts had sometimes gone too far in following “virtually all Strasbourg decisions”.
Compared to Strasbourg case law, the draft law provides that a court:
- must not adopt an interpretation of an ECHR right which extends the protection conferred by that right unless there is no reasonable doubt that the Strasbourg Court would adopt that interpretation if the case were before it; but
- subject to reservations, may adopt an interpretation of a law which departs from Strasbourg case law.
In addition, courts should give:
- “great weight” to freedom of expression under Article 10, except in certain specified cases;
- the “greatest possible weight” to the importance of reducing the risk to the public of persons subject to custodial sentences, and
- the “greatest possible weight” on Parliament’s responsibility to determine the appropriate balance between different policy objectives and rights, including when considering the margin of appreciation.
With regard to the third category, the intention is to ensure that great weight is given to Parliament’s opinion on the public interest (which may differ from that of Strasbourg).
The ECHR imposes both negative and positive obligations on the state. “Negative obligations” prevent the state from taking actions that interfere with an individual’s rights under the ECHR. “Positive obligations” require the state to take proactive steps to avoid or prevent interference with ECHR rights. The government is of the view that positive obligations “can distort operational priorities and force utilities to allocate scarce resources to challenge and mitigate legal liability”.
The draft law therefore provides that courts cannot adopt new interpretations of ECHR rights which impose positive obligations on public authorities (clause 5). In other words, the court would not be able to conclude that there was a positive obligation that had not been recognized before the entry into force of the bill, nor to restore an interpretation prior to the entry into force which would then have been reversed.
Existing positive obligations would be maintained. However, in deciding whether to apply a pre-existing positive obligation, national courts should give “considerable weight” to the need to avoid applying an interpretation that would have certain specified effects, including:
- an impact on the ability of a public authority to perform its functions;
- conflict with or otherwise weaken the public interest by allowing public authorities to use their own expertise when deciding how to allocate the financial and other resources at their disposal;
- the requirement of an inquiry or other inquiry “to a higher standard than is reasonable in all the circumstances”, and
- affecting the functioning of primary law.
Interpretation of legislation
Section 3 of the HRA 1998 requires courts and public authorities to interpret and give effect to legislation in a manner consistent with the ECHR. The Bill of Rights Bill would repeal this provision. The government believes that Article 3 has resulted in an expansive approach, with the courts adapting the legislation rather than simply interpreting it.
Instead, the bill would expand the courts’ ability to make declarations of incompatibility. This is where a court considers part of an Act of Parliament to be 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 wants to change the law. The Bill would extend this provision to allow declarations of inconsistency with respect to subordinate legislation (clause 10). The government considers that the declarations of incompatibility recognize the democratic role of Parliament, by “facilitating dialogue between the courts and Parliament”.
Acts of public bodies
The Bill maintains the position of the HRA 1998 that it is unlawful for a public authority to act or refrain from acting in a manner inconsistent with an ECHR right (clause 12). However, this provision does not apply when:
- because of primary legislation, the authority could not have acted differently, or
- the authority was acting to give effect to or enforce primary or subordinate legislation inconsistent with ECHR rights.
Filing a complaint for violation of human rights
The bill would introduce the obligation to obtain authorization from a court to bring a legal action against a public authority. This would include a requirement that an applicant must have suffered a ‘significant disadvantage’ under Article 35 of the ECHR (clause 15). If the plaintiff could not show a significant disadvantage, he would only obtain the authorization if the court deemed it appropriate for quite exceptional public interest reasons. This is a higher threshold for leave than the current threshold for judicial review proceedings, where the plaintiff must demonstrate an “arguable case”.
Legal remedies in case of violation of rights
It would continue to be the case that where an act of a public authority was found to be unlawful, the court could award such remedy as it deemed “just and proper” (article 17). In determining whether the award of damages and the amount were “just and appropriate”, the court should consider all the circumstances of the case, including the severity of the effects of the unlawful act and the impact on the provision of public services (clause 18).
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 way of regulation, meaning they would not apply for a period of up to five years (clause 27).
Strasbourg interim measures
Interim measures issued by the Court of Strasbourg should not be taken into account when a court determines rights and obligations under domestic law, including when considering whether to grant relief where this could 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 amendments (both by the government and the opposition). However, as currently drafted, the Bill would clearly have major constitutional impact across the UK, not least because of the repeal of the HRA 1998 and the introduction of a new framework of human rights.
One of the main constitutional issues will be the Bill’s impact on the UK’s status as a signatory to the ECHR. The bill would explicitly allow courts to deviate from Strasbourg case law, which the UK is bound to respect under Article 1 of the ECHR. This is one of many areas that will likely come under scrutiny when the bill passes.
For social workers, the impact is difficult to predict. Local authority social workers would remain bound to respect the rights contained in the ECHR. However, what those rights would look like under the bill is not entirely clear, and may only be once courts start deciding cases under the new legislation. Nevertheless, it is difficult to avoid the conclusion that the result 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 the practice of social work. Examples include recognition under Article 5 of “private” deprivations of liberty in family homes and positive obligations under Article 8 to guarantee the rights to home, family and bodily integrity. and psychological. Under the bill, new positive obligations would not be on the agenda, but it is also possible that a more restrictive interpretation will be made of existing positive obligations.
Finally, it is important to recognize that under the bill it may become more difficult to bring human rights lawsuits to challenge local authorities. If this were the case, it would have a direct impact on the users of the services.
Tim Spencer-Lane is a lawyer specializing in mental capacity, mental health and social care law and legal editor of Community Care Inform