The government has shelved this Bill which would have made important changes to human rights legislation. It would have meant that the human rights one can enforce in UK courts are more restricted than if (after exhausting UK remedies) one complains to the Strasbourg Court. In disability discrimination claims under the Equality Act itself I would have expected the Bill to have only a limited impact.
Bill is not proceeding
On 27th June 2023 Alex Chalk, the Justice Secretary, said in Parliament: “Having carefully considered the Government’s legislative programme in the round, I can inform the House that we have decided not to proceed with the Bill of Rights, but the Government remain committed to a human rights framework that is up to date, fit for purpose and works for the British people…” The government was taking action to address specific issues in particular pieces of legislation. (Hansard, Topical questions, 27/6/23)
However I have left in below my previous summary of, and comments on, the Bill:
Archive: The Bill
In June 2022 the government published its Bill of Rights Bill (parliament.uk). The Bill was shelved in September, but the government announced in November 2022 that the Bill “will return to Parliament in the coming weeks” (update, below), perhaps in January 2023.
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 2022:
- There would no longer be a statutory requirement (in s.3 HRA) 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)). Arguably even previous interpretations of UK law to comply with human rights may fall away, unless preserved by regulations under clause 40: Bill of Rights: An unexpected surprise in relation to the s 3 HRA duty to interpret (legalresearch.blogs.bris.ac.uk).
- However Lord Mance has commented the Bill “would leave unmentioned —and presumably untouched — the ‘strong presumption‘ at common law in favour of interpreting an English statute consistently with the United Kingdom’s international obligations… . This is not as cogent a presumption or tool as [s.3 HRA], but the bill would bring its role to the fore.”
- Like the HRA, the Bill would still require public authorities to comply with the Convention (clause 12), but subject to the Bill’s new restrictions on UK courts interpreting and applying the Convention. A further restriction is that proceedings against public authorities (under clause 13) would be allowed only if the court gives permission, for which the claimant must show “significant disadvantage” (clause 15). Also clause 14 blocks 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 on 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 against it: 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. These provisions 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. UK courts would also be encouraged to question existing interpretations by higher UK courts or by the ECtHR imposing such obligations (clause 5). A positive obligation is an “obligation to do any act” – such as to make a reasonable adjustment, if it’s a positive step?
- In deciding whether an Act of Parliament 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 Parliament considered or was aware of the particular issue at all (clause 7). For the current position see R (SC) v Secretary of State for Work and Pensions>Justification: Parliamentary materials. Clause 7 also stresses the importance of Parliament having (allegedly) struck this balance.
- The Bill heavily limits the circumstances in which a UK court can find that a deportation breaches the Convention (clauses 8, 20).
- There would be certain restrictions on UK courts’ powers (clauses 18, 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. After the Bill it is more likely that a declaration of incompatibility may be the only option, as UK courts would have less scope to read and give effect to an Act in a way 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)).
UK case law will need to develop on how the Bill’s provisions should be interpreted and applied, creating legal uncertainty and litigation. But also there are likely to be more appeals to Strasbourg …
Archive: 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 the European Court of Human Rights (ECtHR) in 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 against the UK. 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. If the Bill became law, we could 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, and
- will have 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. An individual can only apply to the ECtHR after all domestic (ie UK) remedies have been exhausted (Article 35 of Convention).
It is also likely that numerous provisions of the Bill of Rights Bill itself will be challenged as being in breach of the Convention.
Archive: 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 itself. 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, except for T v Ministry of Defence (Equality Act cases, below). I discuss some 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? The Bill is of course more likely to be important where the claim is for breach of a Convention right (below), rather than under the Equality Act.
Adjustments in court proceedings
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, albeit influenced by human rights law. In Galo it was Northern Irish common law, but it could equally be English common law etc. 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 referendum emphasised UK constitutional law rather than EU law. (If human rights are relied on in relation to adjustments in court: As regards clause 5 of the Bill which limits positive obligations, there is pre-commencement case law on this area.)
Equality Act cases
An Equality Act case where the Human Rights Act was important is T v Ministry of Defence, 2021. An employment tribunal held that under s.3 HRA the Equality Act must be re-interpreted to permit disability discrimination claims by ex-servicemen and women where discrimination happens after discharge from the armed forces. This decision could well be affected by the proposed Bill of Rights: T v Ministry of Defence>Comments: Bill of Rights Bill.
Another Equality Act case where human rights were important is C & C v The Governing Body of a School, 2018 (not relevant to stammering). The Upper Tribunal held that to comply with the Convention, 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) this regulation, 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 regulation, and this would also reduce the risk to the public purse of claims to the ECtHR for compensation.
Claims based on human rights
The proposed Bill is of course more likely to be important – and to restrict rights to claim in UK courts – where the claim is for breach of a Convention right rather than under the Equality Act. There are disability examples at The Human Rights Act 1998 (HRA) (disabilityrightsuk.org).
When Liz Truss became Prime Minister in September 2022, a government source said the Bill was unlikely to progress in its current form (guardian.com). The administration was “reviewing the most effective means to deliver objectives through our legislative agenda”.
However Rishi Sunak reappointed Dominic Raab as Justice Secretary. It was Dominic Raab who originally introduced the Bill in June, and he announced in early November 2022 that the Bill “will return to Parliament in the coming weeks”:
- Raab to bring back British Bill of Rights in bid to curb migrant crossings (independent.co.uk), 6 Nov 2022.
- Bill of Rights Bill (parliament.uk) – the Bill, Explanatory Notes, progress through Parliament etc.
- Mance eviscerates Raab’s bill (rozenberg.substack.com), 31 Oct 2022 – former deputy president of UK Supreme Court.
- The UK’s (new) Bill of Rights (publiclawforeveryone.com), 22 June 2022 by Professor Mark Elliot.
- “Oh no, not again” – the story of the Human Rights Act and of the new “Bill of Rights” (davidallengreen.com), 23 June, for a historical perspective including the position before the HRA 1998. Also more posts there in the category Bill of Rights (davidallengreen.com).
- A list of articles and commentary on the proposed Bill of Rights (lewisgrahamlaw.wordpress.com) – links to legal opinion and academic commentary on the proposed Bill of Rights.
- Thinktank puts ECHR withdrawal back on Tory agenda (lawgazette.co.uk), 3 October 2022.