Submission to the UK Parliamentary Joint Committee on Human Rights

October 2022

Introduction

1. The United Kingdom (UK) government’s plan to repeal the Human Rights Act 1998 (HRA) and replace it with a Bill of Rights (BOR) will weaken human rights protections at home and send a negative signal globally about the value of international human rights standards and the worth the UK government attaches to them.
2. The UK government has failed to show that there is a pressing need to make changes to the HRA. The current pause on the legislation following a change in Prime Minister provides an important opportunity to examine the details of the Bill as it was proposed, in order to be able to be pay close attention to any revised version that may be brought back before Parliament. Doing so would help reflect on the intention of the legislation, given the consistent skepticism expressed over the years by leading Conservative politicians about both the HRA and the European Convention on Human Rights (ECHR).
3. The submission below focuses on specific clauses in response to some, but not all, of the questions set out by the Joint Committee on Human Rights (the Committee or JCHR) at a time when the BOR Bill was still pending a second reading. The submission is worded on the basis of the text of the Bill as it stood at the time of the JCHR’s call for evidence. Given the government’s subsequent decision to review the proposed legislation, and the possibility of its reintroduction to Parliament in new or modified form, Human Rights Watch urges UK parliamentarians to remain attentive to these issues and to reject in its entirety any legislative effort to repeal the Human Rights Act and replace it with a BOR.
4. The government’s proposal of the BOR Bill in June effectively ignored key findings and recommendations of the Independent Human Rights Act Review it had earlier commissioned. The government’s approach runs counter to the views expressed by the overwhelming majority of the over 12,000 organizations and people who responded to the Ministry of Justice’s (MOJ) pre-legislative consultation. The plan to replace the HRA with the BOR is a misguided exercise based on a misleading framing.
5. Human Rights Watch welcomes the legislative scrutiny the JCHR brings to this exercise, with the opportunity for the wider public to submit its views through an online survey. This is particularly important given the government’s earlier rejection of the call by multiple parliamentary committees, including the JCHR, to ensure an opportunity for pre-legislative scrutiny of a draft Bill prior to publication.[1] Any new or revised Bill that returns to Parliament should be subject to full pre-legislative scrutiny.

The relationship between UK Courts and the European Court of Human Rights (Questions 1-2)

6. Clause 3 of the Bill seeks to narrow significantly the extent to which the jurisprudence of the European Court of Human Rights (ECtHR), and in particular its interpretation of the rights in the ECHR, have a bearing on domestic courts in the UK, including by limiting how British judges reach their decisions.
7. The result would be a significantly more restrictive and retrogressive approach to understanding rights protections, and would be at odds with four decades of the evolution of ECtHR jurisprudence. In particular, the doctrine of the ECHR as a “living instrument” that the Strasbourg and domestic courts can interpret purposively to keep pace with social, political, and technological changes, is crucial to how the understanding of human rights has developed in the Council of Europe region, on issues as wide-ranging as corporal punishment, consensual same-sex relationships, and surveillance.[2]
8. The current proposals in the BOR would be retrograde, particularly given the way Clause 3(3)(a) sets out new and highly restrictive circumstances in which British judges could apply the living instrument doctrine. The proposals would effectively restrict British judges to applying a baseline, or floor, of rights protections in the Council of Europe as the ceiling in the UK, except where the British court is in “no reasonable doubt that the ECtHR would adopt that interpretation if the case were before it.”[3]
9. The ECtHR has been clear that the Convention needs to be interpreted beyond a black letter interpretation of the text of the ECHR and its preparatory documents, saying its interpretation needed to be “in accordance with developments in international law, so as to reflect the increasingly high standard being required in the area of the protection of human rights.”[4] In that specific case, the ECtHR went further saying that a Court that was unwilling to depart from precedent where necessary “to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.”[5]
10. Clause 3 is precisely this sort of bar to reform or improvement in rights protections. There is a significant likelihood it may even prove counterproductive, and encourage more litigation against the UK before the ECtHR on how rights ought to be interpreted, with British judges hamstrung by the legislation in making their judgments, which then rightly end up overturned by the ECtHR. This would result in the opposite intention to the Human Rights Act, which was meant to bring human rights “home.”

Interim measures/Rule 39 (Question 3)

11. The sudden appearance of Clause 24 in the Bill is of grave concern. The government’s introduction of explicit legislative footing directing the UK and domestic courts to disregard interim measures of the ECtHR under Rule 39 (Clause 24), and its affirmation that interim measures will not be a part of domestic law or restrict Parliament (Clause 1(3)), should both cause alarm. Rule 39 interim measures are an urgent mechanism the ECtHR’s rules provide for to allow temporary relief from “an imminent risk of irreparable harm,” while a substantive case is ongoing and without prejudice to its outcome.
12. The issue of interim measures did not feature at all in the pre-legislative consultation. This appears to be a legislative response to Rule 39 interim measures staying government efforts to send asylum seekers arriving in the UK by irregular means to Rwanda. Even though the UK government is obligated to respect the principle of non-refoulement in international human rights and refugee law, Rule 39 measures represent a critical independent check on the UK government’s implementation of its non-refoulement obligations in practice.
13. Beyond the use of Rule 39 to stay expulsion, deportation, and extradition proceedings, which seem to be at the heart of the UK government’s current objection to interim measures, they have also been crucial to prisoners accessing critical medical care, next of kin asking for more time to consider the details of a case before removing life support from a family-member, ensuring adequate legal representation for defendants in their trials, preventing forced evictions, and preventing the destruction of medical material or evidence.[6] The current proposals to curtail the effectiveness of Rule 39 interim measures would deprive people in very difficult circumstances, and potentially facing a human rights violation, from accessing the emergency pause mechanism the ECHR provides, precisely when such legal intervention is needed to prevent the imminent risk of irreparable harm.
14. This reactive turn by the UK government would undermine the Rule 39 system at the Council of Europe and thereby put the rights of people at risk across the region. It would serve as a green light to Council of Europe states with poor human rights records to treat Rule 39 interim measures with the same scant regard, with the potential of resulting in serious, irreparable human rights harms beyond the UK.

Parliamentary scrutiny (Questions 4-5)

15. The BOR Bill weakens parliamentary scrutiny, rather than strengthening it.
16. The impact assessment document that accompanies the BOR Bill asserts that the repeal of Section 19 of the HRA, which requires ministers to make and publish a statement about the compatibility of any proposed legislation with the ECHR, is done with “the aim of encouraging bold and innovative policy making.”[7] Removing Section 19 would inhibit the ability of parliament to assess the impact of proposed legislation on people’s human rights.
17. The assessment that repealing HRA Section 19 has no costs and brings net positive impacts is surprising.[8] A stark example of the costs and impacts at stake arose during the pre-legislative consultation phase on introducing a BOR; the MOJ failed to provide easy-to-read (ETR) and audio format versions of the consultation documents in a timely fashion, and once it did eventually produce them, it gave people with disabilities who needed these versions less time than others to respond.[9] An Executive that is prepared to treat people with disabilities in this manner with Section 19 HRA in place is likely to be even less fettered once it has repealed it.
18. The BOR Bill’s passage to date also does not inspire confidence in the government’s interest in genuine parliamentary scrutiny and oversight, with the Executive’s earlier refusal to allow pre-legislative scrutiny of the Bill as one telling example.

Interpreting and applying the law compatibly with human rights (Questions 6-8)

19. Section 3 of the HRA, which requires Parliament to ensure the compatibility of UK legislation with the ECHR “so far as possible,” is already sufficiently permissive to allow the UK legislature to diverge from rights as they are interpreted by the Strasbourg court. Removing that requirement altogether is an unnecessary weakening of rights protections. Individuals who fear having their human rights violated as a result of proposed legislation – for example on the provision of services for victims of domestic violence, or on the investigative mechanisms into conflict-related killings in Northern Ireland – would not be able to insist that their ECHR rights are protected as the legislation develops through Parliament.
20. Clause 40 of the Bill contains vaguely defined, overly broad and discretionary powers for the Executive to “amend or modify any primary or subordinate legislation so as to preserve or restore (to any extent) the effect of a relevant judgment [i.e. one reliant on Section 3 HRA] of a court” using regulations. In effect, rather than ensuring proper parliamentary scrutiny, the proposals allow the Executive greater discretion to cherry-pick human rights jurisprudence it likes and wishes to preserve in domestic law, and to discard what it does not like.[10] As currently worded, it is possible for all existing jurisprudence based on Section 3 HRA to no longer be law, unless affirmed as being preserved by a Minister. This aspect of the proposed legislation is likely to cause legal uncertainty (despite the stated aim of reducing uncertainty throughout the documentation accompanying the Bill), as it places the value of jurisprudence at the whim of the Executive. The MOJ’s inability to set out clearly in its impact assessment how many cases involve Section 3 HRA incompatibility, and recognition that the change may entail costs and that its net impacts are not clear, only add to the uncertainty of the proposed legislative change.[11]
21. Clause 5 of the Bill seeks to drastically reduce the government’s “positive obligations.” It will prevent domestic courts, if the Bill becomes law, from interpreting ECHR rights in a way that would impose a positive obligation on a public authority. It will also significantly limit the extent to which domestic courts can require public bodies to comply with existing positive human rights obligations in a wide range of issue areas. The legislation, as it is worded, could cover an alarmingly wide range of public policy issues, as it tells courts they must not interpret positive obligations as applying in cases where they “would have an impact on the public authority or of any other public authority to perform its functions.” As currently worded, this could arguably leave a wide range of people without the rights protection they need and vulnerable to rights violations – e.g. people needing protection from domestic violence in a local authority that lacks the funding or caseworkers to provide the relevant shelter or advice; survivors of rape or sexual assault who feel the authorities have not adequately investigated and prosecuted cases, or taken sufficient steps to protect them from perpetrators; the family of someone who died in police custody calling for a reopened inquest where an earlier one has been unsatisfactory; survivors of torture or family members of a victim of an extrajudicial killing during the Northern Ireland conflict calling for an investigation; and people who may or may not be directly involved in criminal activity and require protection from law enforcement where police are aware of an imminent threat to their life.
22. The approach to scaling back positive obligations in Clause 5 is based on a misleading framing of what they are, and assumptions or assertions unsupported by evidence about their impact on the behavior of public authorities. In its pre-legislative consultation exercise the government argued that positive obligations create uncertainty for public authorities because they reduce their ability to take action or because of fear of litigation.[12] To the contrary, positive obligations on state authorities are an essential component of every human right – for example the prohibition on torture requires state authorities to prevent, investigate, and prosecute those responsible for torture – and are key to building a society and culture that respects human rights.

Enforcement of human rights: Litigation and remedies (Questions 11-13)

23. Various aspects of the proposals, together with the reality of over a decade of cuts in the funding of civil legal aid in the UK, have a negative effect on people’s ability to enforce their rights, including their right to an effective remedy (Article 13 ECHR).
24. The narrowing of the definition of positive obligation (Clause 5), the new “extreme harm” threshold or bar for private and family life claims in deportation cases (Clause 8), and insulating of all British overseas military operations from human rights claims (Clause 14) will either impede or outright curtail access to an effective remedy.
25. Clause 15 introduces a new permission stage to bring human rights claims before a domestic court. The proposal will create new barriers in accessing remedies for breaches of human rights, beyond the permissions stage that is already a part of the normal judicial review process. There is a risk that courts at the request of the public authority will apply a high threshold for showing a significant disadvantage or overriding public importance. In addition, without clear guidance on these tests, there is scope for arbitrary or inconsistent application. Such a test is also likely to further entrench the discrimination and access to justice issues faced by marginalized groups.
26. Given the widely documented impact of cuts to legal aid for civil matters and diminishing availability of publicly funded legal assistance, individuals who have suffered a human rights violation are less likely to have the resources and expert advice needed to clear the hurdle that Clause 15 places in their way.[13] The MOJ’s impact assessment document admits as much, stating that there is “a risk that some individuals who have meritorious claims may be discouraged from pursuing them through the introduction of these requirements.”[14]
27. Clause 18(5)(a) would require courts to take into account “any conduct of the person that the court considers relevant (whether or not the conduct is related to the unlawful act),” when assessing damages awards to the victims of a human rights violation. This means that courts must consider people’s conduct not just in relation to the circumstances of the human rights claim, but potentially all their past conduct. A statutory requirement on judges to consider past claimant conduct would be a regressive step. This clause draws on and feeds a wider public discourse challenging the universality of human rights, in which some people’s rights are believed to warrant protection only insofar as they adhere to standards of behavior deemed acceptable by the state.

Specific rights issues (Question 16)

28. Clause 14 on overseas military operations appears to be a response to repeatedly stymied UK government attempts to completely remove the protection of human rights law from those affected by its actions during UK involvement in conflict overseas, or to claim that human rights law no longer applies during an armed conflict. International human rights law and the law of armed conflict are clear that human rights law continues to apply during armed conflicts (protecting members of the armed forces themselves) and the UK government should be accountable for the acts of its armed forces and officials wherever in the world these take place, especially in situations where they have clear control over individuals, such as military occupations and detention. In particular, failure to protect the human rights of detainees from the moment they are detained leads to abuse, which can lead to war crimes that put UK forces at risk of arrest and prosecution globally.[15]
29. One aspect of discrimination built into the MOJ’s impact assessment document is profoundly concerning.[16] The Ministry’s analysis of existing data of UK armed service personnel, who would also be excluded from making human rights claims relating to military operations overseas, foresees a discriminatory impact on individuals with a disability arising from injuries sustained during overseas operations, but assesses this discrimination as indirect, low impact, and justifiable. In breach of its non-discrimination obligations, the government seeks to exclude its own soldiers who acquire a disability while serving in its armed forces from asserting their human rights in court, possibly in relation to the circumstances of their injury.
30. Clause 14 cannot be amended to bring it in line with the UK’s international law obligations.

Two further issues beyond those identified by the JCHR: Foreign policy implications and role of the Council of Europe’s Committee of Ministers

31. Although the JCHR has not set these two issues out in its questions, Human Rights Watch encourages the Committee to consider them.
32. The proposed legislative reform is likely to have a negative spill-over effect in terms of the UK Government’s international reputation and ability to advocate for human rights in its foreign policy around the world. The proposals, if realized, are likely to be perceived by governments in the Council of Europe region and beyond that engage in widespread human rights abuses as a signal that the UK considers reducing rights protections, particularly those derived from the European Convention on Human Rights (ECHR), as acceptable. The proposed reform will also likely weaken the UK government’s legitimacy in international bodies and mechanisms in which the UK participates, including the UN Human Rights Council, and undermine the credibility of the Foreign, Commonwealth and Development Office (FCDO) to be able to encourage other states to comply with their human rights obligations and to call them out for failing to do so. We encourage the Committee to consider both the extent to which the proposals in the Bill will weaken the ECHR system more widely, and how these developments could weaken the UK’s standing when advocating for human rights protections in its foreign policy.
33. One significant change from the HRA framework, which has received relatively little attention in commentary to date, is the removal of any mention of the Council of Europe’s Committee of Ministers from the statutory framework. Not only does Article 46 of the ECHR make clear that judgments of the Strasbourg court have binding force, but it also names the Committee of Ministers as the competent body responsible for ensuring the execution of a judgment. HRA Section 2(1)(d) specifically recognized this role of the Committee of Ministers, which has been important, for example, in maintaining scrutiny of UK government failures to fully investigate conflict-related killings in Northern Ireland. Removing this role for the Committee of Ministers will weaken the oversight of ECHR protections in the UK. It also carries the risk that member states of the Council of Europe which are serial violators of the ECHR will use the UK’s diminished respect for Article 46 as a justification to flout decisions of the Strasbourg court and ignore decisions of the Committee of Ministers.

About Human Rights Watch

34. Human Rights Watch is an independent, non-profit, nongovernmental human rights organization. Each year, Human Rights Watch publishes more than 100 reports and briefings on human rights conditions in more than 90 countries around the world.

This document is an edited version of the original submission to the Joint Committee on Human Rights’ legislative scrutiny process. It has been amended to remove contact details of Human Rights Watch staff and to ensure consistency with house style.