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Bill of Rights Bill

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Last updated 26th June 2022.

The government has put to Parliament important changes to human rights legislation. However in disability discrimination claims under the Equality Act I would expect the proposed Bill to have only a limited impact.

The Bill

In June 2022 the government published its Bill of Rights Bill (parliament.uk), which will now be considered by Parliament.

The Bill would replace the Human Rights Act 1998 (HRA), and set out new rules on how far UK courts should give effect to the European Convention on Human Rights (for the current position see Enforcement of European Convention and HRA 1998). I discuss the Bill’s relevance to the Equality Act below. More generally, based on the first version of the Bill published in June:

  • There would no longer be a specific requirement for UK courts to read and give effect to UK legislation, so far as possible, in a way which is compatible with Convention rights (clause 1(2)(b)).
  • Like the HRA, the Bill would still require public authorities to comply with the Convention (clause 12). Clause 13 enables proceedings against public authorities, provided the court gives permission (clause 15, which requires “significant disadvantage”). However under clause 14 the Bill does not allow proceedings in connection with overseas military operations.
  • What about decisions of the European Court of Human Rights (ECtHR) in Strasbourg?
    • At present UK courts are not bound by ECtHR decisions, but must “take [ECtHR decisions] into account” (s.2 HRA).
    • The Bill of Rights Bill does not even say UK courts must take them into account. Clause 3(1) says the (UK) Supreme Court is the ultimate judicial authority on questions arising under UK law in connection with Convention rights. Clause 3(3)(b) specifically says UK courts can diverge from ECtHR interpretations.
    • Clause 3(2) says UK courts must have particular regard to the text of Convention rights, and may have regard to “preparatory work of the Convention” – so perhaps focusing on a right’s original meaning rather than a more generous evolving interpretation under the ECtHR’s “living instrument” doctrine.
    • (Importantly though, in international law the UK government remains bound by ECtHR decisions: below More work for Strasbourg.)
  • The Bill contains further important provisions (clauses 3-9) on how the UK courts should interpret and apply Convention rights, provisions which would essentially mean the UK courts are less likely to find there is a breach. For example:
    • UK courts would be unable to reach new interpretations which impose a positive obligation on public authorities, and would be encouraged to question existing interpretations imposing such obligations (clause 5). A positive obligation is an “obligation to do any act”, such as make a reasonable adjustment?
    • In deciding whether an Act strikes an appropriate balance between different rights etc, the UK court would have to regard Parliament as having decided that the Act does indeed do so, presumably even if there is no evidence that the particular issue was considered at all (clause 7).
    • The Bill heavily limits the circumstances in which a UK court can find a deportation breaches the Convention (clause 8).
  • There would also be certain restrictions on UK courts’ powers (clauses 20-24).
  • Under the Bill, the UK’s higher courts could still declare an Act of Parliament incompatible with Convention rights (clause 10), but – like at present – the Act will continue in effect unless and until corrected by the government (clause 26) or by Parliament. A declaration of incompatibility may more often be the only option, as UK courts would have less scope to read and give effect to an Act in a way which is compatible with the Convention (above).
    • As regards regulations (made by the government rather than Parliament) incompatible with the Convention, it seems a UK court could still potentially quash the regulation, or declare it invalid (clause 10(1)(b)(ii)).

More work for Strasbourg

The purpose of the HRA 1998 was to “bring rights home”, to enable the UK courts to decide on Convention rights rather than cases having to go off to Strasbourg. Under the Bill of Rights Bill, Convention rights would still be part of UK law to the extent described in the Bill. However to a large extent, how the UK courts interpret and apply Convention rights would be “decoupled” from how the ECtHR in Strasbourg interprets and applies them.

Despite the Bill, in international law the UK will remain bound by decisions of the ECtHR in Strasbourg. Article 46 of the European Convention on Human Rights says countries signed up to the Convention undertake to abide by the final judgment of the ECtHR in any case to which they are parties. The UK government intends that the UK remains a party to the Convention, which is separate from the EU and so unaffected by Brexit. Assuming the Bill becomes law, we can expect more cases to go to the ECtHR in Strasbourg, and more ECtHR decisions finding the UK in breach of the Convention, because under the Bill the UK courts will often be applying a more restrictive interpretation of the Convention than the ECtHR, and will be restricted by the Bill in other ways. Also there will be less scope to re-interpret UK legislation in a way that complies with the Convention.

The need go to Strasbourg will often create added cost and delay for those willing and able to persevere that far.

Relevance to Equality Act

I would expect the Bill of Rights Bill to have only a limited impact on disability discrimination claims under the Equality Act. Indeed in EqA employment claims – which are the vast majority of EqA claims – I find it difficult to think of any case where human rights arguments helped a disabled claimant. I discuss limited areas where the HRA may be relevant to EqA claims at Human Rights Act 1998/ European Convention>Where may Convention rights increase Equality Act protection?

One important area where rights are often not based on the Equality Act is adjustments in court proceedings for witnesses, defendants, and other parties to litigation: see Appearing in court. However the UK courts, eg in Galo, talk here of a common law duty of fairness (ie under English law), albeit influenced by human rights law. Personally I doubt the Bill would weaken protection in this area. below the current level (which admittedly some argue is too low). In future though the UK courts may emphasise common law more than human rights as the basis for their decisions, like the Supreme Court ruling on employment tribunal fees in 2017 after the Brexit refendum emphasised UK constitutional law rather than EU law. (If human rights are relied on: As regards clause 5 of the Bill which limits positive obligations, there is pre-commencement case law on this area.)

One Equality Act case where the HRA was important is C & C v The Governing Body of a School, 2018 (not relevant to stammering). The Upper Tribunal held that a regulation saying a tendency to physical abuse cannot be a “disability” within the EqA should be either re-interpreted or disapplied, as regards children in an education context. The EqA could therefore apply when an autistic child with a tendency to lash out was excluded from school. It seems that under the Bill a UK court could disapply (but perhaps not re-interpret) the regulations, though a court might need to consider whether its ability to decide there is a breach of the Convention here is affected by the Bill’s provisions. It would be clearer for everyone if the government amended the regulations, and this would also reduce the risk to the public purse of claims to the ECtHR for compensation.

The Bill is of course more likely to be relevant where human rights law rather than the Equality Act is being relied on, for example to challenge social security regulations.

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