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A new Bill of Rights for the UK. Two courts, two “masters”?

Carla Zoethout, Professor of Constitutional Law, Open University, The Netherlands

On September 5, 2022, the Conservative Party will select a new leader – the fourth in six years. Because of the Conservatives’ majority in the UK parliament, the winner of the party leadership will automatically become Prime Minister and Johnson’s successor is likely to take over the next day. Apart from the lingering consequences of Brexit; the cost of living with the rising energy prices and the likely return of COVID-19 in the autumn, the new PM will soon be facing another major issue: the recently launched initiative for a (new) human rights catalogue.

One week later, on September 12, 2022, MPs will have the opportunity to debate the main principles of the Bill of Rights Bill (2022) in the House of Commons. If adopted, the Act may bring about major constitutional changes. The current Human Rights Act 1998 in effect means that the final word regarding the interpretation of the Convention rights is up to Strasbourg (for the background, see my previous blog). Shortly the balance between the European Court of Human Rights and the UK courts is likely to be reversed, given the Conservative majority. The Bill of Rights Bill may be regarded as an act restoring the sovereignty of the UK Parliament. But now the question arises: will the Bill of Rights result in yet another Brexit, this time of the European Convention of Human Rights?

Some highlights from the Bill of Rights Bill

The present Bill of Rights Bill ‘clarifies and re-balances the relationship between courts in the United Kingdom, the European Court of Human Rights and Parliament.’ As the Act says in Clause 1 (Introduction):

(a) (…) it is the Supreme Court (and not the European Court of Human Rights) that determines the meaning and effect of Convention rights for the purposes of domestic law;

(b) (…) courts are no longer required to read and give effect to legislation, so far as possible, in a way which is compatible with the Convention rights and

(c) (…) courts must give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about the balance between different policy aims, different Convention rights and Convention rights of different persons are properly made by Parliament. (…)’

Just like the Human Rights Act 1998, the Bill of Rights Bill intends to incorporate the Convention Rights into UK law. And, similar to the HRA, courts can only issue a ‘declaration of incompatibility’ when reviewing an Act of Parliament. They cannot declare a provision of an Act, void. Apart from the apparent change of balance between the ECtHR and the Supreme Court UK, the new Bill aims to restore parliamentary sovereignty and thus restore judicial restraint of the UK courts. Traditionally, this is considered to be the hallmark of the British constitution. As it is said in the Explanatory Notes to the Bill:

‘The Bill will make clear the weight to be given to the views of Parliament. (…) It will require courts, when determining questions relating to Convention rights in contexts where Parliament has legislated, to give the greatest possible weight to Parliament’s view of the public interest. The Bill will protect Parliament’s ability to exercise its judgement in balancing complex and diverse socio-economic policies, with the wider interests of society.’

I will highlight more remarkable features of the Bill of Rights Bill. One is that once adopted, it will be easier for the government to deport foreign criminals, by restricting the circumstances in which their right to family life would trump public safety and the need to remove them (Clause 8). When it comes to ‘positive obligations’ for public authorities (which the European Court of Human Rights has accepted as part of its case-law), courts are expressly required to ignore this doctrine, once the Bill is adopted. Furthermore, the Bill of Rights Bill introduces a permission stage for human rights claims (requiring that the person is, or would be, a victim of the (proposed) act); it will ensure that courts consider a claimant’s conduct when awarding damages; and the Bill gives a boost to the freedom of expression, according to the Explanatory Notes. The freedom of expression is elevated over the right to privacy (as the latter has increasingly restricted reporting in recent years). Moreover, a stronger test is introduced for courts to consider, before they can order journalists to disclose their sources.

What to think of the Bill of Rights?

There is a lot to be said about the proposals, in terms of weakening human rights protection in the UK (see Mark Elliot’s analysis) or the effects of the UK’s unilateralism (see Giulia Gentile’s blog), or in terms of a European viewpoint. Being a constitutional scholar coming from the Netherlands, I would end with some reflections from the latter, that is, Council of Europe, perspective.

Ever since the introduction of the Human Rights Act 1998, reconsidering the role of the European Court vis-à-vis the UK Parliament and courts has been an ongoing process in the UK. The Bill of Rights, just like its predecessor, includes the Convention rights and freedoms. However, it is the UK Supreme Court that defines their meaning in the near future. That raises the question: what if the UK Supreme Court’s interpretation differs from the European Court’s case law (which will most likely happen, given the conditions of the new Bill of Rights)? Provided time, money and energy, UK litigants may still take then their case to Strasbourg and win. After all, at the European Convention level, it is the European Court’s interpretation that is determinative. The relationship between the UK and the European Court of Human Rights may soon be yet again under stress. Will the Bill of Rights mean the beginning of the end of the UK’s membership of the European Convention?

Suggested citation: Carla Zoethout, A new Bill of Rights for the UK. Two courts, two “masters”?, Int’l J. Const. L. Blog, Aug. 31, 2022, at: http://www.iconnectblog.com/2022/08/a-new-bill-of-rights-for-the-uk-two-courts-two-masters/

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Published on August 31, 2022
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