Short(ish) Read Explainer: The Rights Removal Bill

What will the Rights Removal Bill do?

Repeals the HRA.

Clause 1 of the Rights Removal Bill repeals the HRA, which goes far beyond the Conservative pledge to “update” the Act.

Creates a disconnect between domestic courts and the ECtHR.

Section 2 of the HRA requires courts to take into account ECtHR case law when faced with similar cases. However, this case law does not set a precedent that UK courts are required to follow. Section 2 thus provides clarity in how the ECHR rights apply in practice and in different circumstances, but lets the UK apply rights in ways that are compatible with our own laws and traditions. Clause 3 of the bill removes this obligation. The result of this change will be a disconnect between how rights are applied in domestic courts vs the ECtHR. Consequently, it is inevitable that more cases will be taken to the ECtHR as they will not achieve remedy in UK courts.

Removes the responsibility to apply laws compatibly with human rights.

Section 3 of the HRA allows courts to interpret laws in a way that makes them compatible with human rights, provided that they do not change the meaning or the intention of the legislation in doing so. For example, the Rent Act 1977 protects a person’s tenancy if their spouse dies (survivorship). In the case of Fitzpatrick v Sterling Housing Association Ltd, where the original tenant died in 1994, prior to the HRA coming into effect, the courts ruled that the Rent Act provisions did not include people in same-sex relationships under the legal understanding of a spouse. However, Section 3 of the HRA allowed the courts to interpret “spouse” as including same-sex relationships and protect survivorship rights in the case of Ghaidan (Appellant) v. Godin-Mendoza, where Mr Godin-Mendoza’s partner died in 2001, just three months after the HRA came into force.

The Rights Removal Bill repeals Section 3 of the HRA so courts will no longer be able to read legislation in a way that is compatible with the ECHR. If courts cannot do this, their only option will be to issue a Declaration of Incompatibility (DOI), which tells Parliament that there is a problem with the legislation and that they should consider changing it. While DOIs are very valuable, they cannot achieve immediate remedy for a victim as it can take months or even years for Parliament to change legislation.

This is compounded by Clause 40 of the bill which gives powers to Secretary of State decide which past Section 3 judgements are to be preserved or overridden, thereby creating tremendous legal uncertainty. Using the previous example of the Rent Act, it is for the Secretary of State to choose whether the precedent set by Ghaidan (Appellant) v. Godin-Mendoza will be carried forward and if same-sex couples will continue to be protected. Meanwhile, the Government has not provided any clarity surrounding the judgements that are to be affected, nor how they will be approached. Without a clearly defined approach, there is a significant risk that the process will be politicised and arbitrary.

Disrupting the balance of freedom of speech.

The HRA goes to great lengths to balance conflicting rights (for example, if a newspaper wants to publish your private information, the courts must balance free speech with your family’s right to privacy). Clause 4 of the Rights Removal Bill will prioritise free speech over other rights, except in a range of instances which largely involve the ability for individuals to assert their right to free speech to the disadvantage of the Government, for example protests and cases of deportation. This clause will hinder courts’ abilities to approach the intricacies of complex cases with nuance and provide no enhancement of individuals’ freedom of expression against the Government.

Removing positive obligations.

The HRA enforces a positive obligation on public authorities to protect human rights. For example, the state must actively protect someone if their life is at risk. Clause 5 of the Rights Removal Bill limits existing positive obligations and precludes any further expansion of these obligations. Positive obligations are the foundations of safeguarding and are instrumental to public services’ abilities to serve those that rely upon them. However, the bill removes the “obligation to do any act”, which could foreseeably include acts such as a medical practitioner performing a risk assessment on a patient who poses a risk to their own life, or the police investigating a death, or a social worker communicating with teachers to liaise about safeguarding concerns.

Creating a hierarchy of ‘acceptable’ victims.

Clauses 6 and 18 create a dichotomy between prisoners (those seen as ‘bad’ and ‘undeserving’ of human rights) and the ‘good’ and ‘deserving’ members of wider society. Clause 6 restricts prisoners from challenging breaches of their human rights, especially in relation to when considering releasing prisoners from custody or where they should be housed while in custody (e.g., solitary confinement, sex-segregated settings etc).

Such a change undermines the universality of human rights and will exacerbate structural inequalities and disproportionately impact Muslims and people of colour who are already overrepresented in the criminal justice system.

Limiting the grounds to challenge deportation orders.

Clauses 8 and 20 of the bill limit the grounds upon which deportation decisions can be challenged and the ability to appeal. In practice, Clause 8 will effectively remove the ability to use Article 8 (right to family life) in preventing Government deportation orders. Meanwhile, Clause 20 dictates that the court must accept that the Secretary of State’s assurances (such as that the destination country is safe) are correct and dismiss an appeal, unless to do so would “result in a breach of the right to fair trial so fundamental as to amount to a nullification” of the right to fair trial. The threshold of a “nullification” goes far beyond the principle that all breaches of human rights are unacceptable. Moreover, in recent times, the Secretary of State’s assurances have proven to be far from infallible.

Introducing a limited right to a jury trial.

Clause 9 of the Rights Removal Bill introduces a limited right to a jury trial. This is a painfully symbolic gesture. Article 6 of the HRA already protects the right to a fair trial and supports the application of legal traditions as they operate across the devolved powers, with trial by jury not existing in Scots Law. Therefore, any enactment of this clause would provide no additional value to the protections currently in place and could destabilise devolved settlements.

Removes the obligation for public bodies to act in accordance with human rights.

Section 6 of the HRA requires public bodies to interpret legislation compatibly with human rights and makes it unlawful for them to act in violation of these rights. It is, therefore, a vital provision for ensuring that a culture of respect for human rights is embedded across public bodies. However, Section 6 is to be replaced by Clause 12 of the Rights Removal Bill, which when combined with the repealing of Section 3 of the HRA will remove the obligation for public bodies to read legislation compatibly with human rights and prevent claims being made against such bodies even if they are enforcing laws in a way that violates human rights. Consequently, Clause 12 is removing a fundamental layer of protection that currently ensures that human rights are a primary consideration within the decision-making, policy, and practice of public bodies.

Limiting claims against overseas military operations.

Clause 14 of the bill effectively removes the ability for people to bring cases against overseas military operations on human rights grounds except in very limited circumstances. In real terms, this amounts to a complete ban on access to justice regarding such breaches. This change will have devastating consequences for members of the armed forces and their families, as well as for innocent civilian populations who will be prohibited from seeking justice.

Introducing a permission stage.

Clause 15 of the bill introduces a permission stage when bringing cases, ultimately enhancing the difficulty for ordinary people to access justice by increasing the burden to prove “significant disadvantage”, perhaps even before an individual has had access to legal advice.

Requiring courts to take into consideration the conduct of claimants.

The Rights Removal Bill introduces changes demanding that courts take into account the behaviour of the victim in cases involving damages, regardless as to whether that conduct is in relation to the unlawful act under examination (Clause 18(5)). Under this change, courts must also give great weight to the inconvenience damages being awarded could cause public authorities (Clause 18(6)) and the potential for other public authorities to become liable in similar cases (Clause 18(7)). All of these changes will undermine the public’s access to justice and impact a claimant’s right to effective remedy (Article 13 of the ECHR) and, again, will likely result in more cases being taken to the ECtHR.

Removing consideration for interim measures from the ECtHR.

Clause 24 of the Rights Removal Bill requires UK courts to ignore all interim measures of the ECtHR, thereby preventing courts from complying with international law and the UK’s international obligations.

Undermining parliamentary scrutiny.

Throughout the bill, there are numerous mechanisms that remove scrutiny of the executive by decreasing the oversight of Parliament and weakening the powers of the judiciary. The bill removes the current obligation under Section 19 of the HRA for the Minister responsible for introducing a bill to make a statement declaring its compatibility with human rights. The requirement for a Minister to make such a statement is an important safeguard as it ensures those responsible for introducing a bill undertake due diligence and legal advice during the drafting of the bill.