Legislative Scrutiny: Bill of Rights Bill – Report Summary

This is a House of Lords and House of Commons Committee joint report, with recommendations to government. The Government has two months to respond.

Author: Joint Committee on Human Rights

Related inquiry: Legislative Scrutiny: Bill of Rights Bill

Date Published: 25 January 2025

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The Bill of Rights Bill repeals and replaces the Human Rights Act 1998 (HRA). It is a major reform of our human rights framework. The Secretary of State for Justice and Lord Chancellor, Rt Hon Dominic Raab MP, has described the Bill as “the next chapter in the evolution and strengthening of our human rights framework”.

Whilst there might be a case for some small changes to be made to the Human Rights Act, those alone do not make for a new Bill of Rights. It seems to us that the Bill is likely to reduce the protections currently provided by the HRA, which some argue is the Government’s intention; to place restrictions on the interpretation and application of the rights set out in the European Convention on Human Rights (ECHR) in our domestic system; to limit the powers of the courts accordingly; and to divorce ourselves from the European Court of Human Rights in Strasbourg (ECtHR) as far as possible. Moreover, the Bill will likely see more cases going to the European Court of Human Rights, and result in more adverse judgments against the UK.

The Bill’s desirability is highly contested. We believe that some of its provisions are simply unnecessary, whilst others are positively damaging to the enforcement and protection of human rights in the UK. We also cannot see how the Bill will achieve its own stated aims of strengthening rights protection, the role of Parliament, or increasing legal certainty. We are not alone in our view. The evidence we received, and the responses the Government received to its consultation on a “modern Bill of Rights”, were overwhelmingly against these proposals.

We call on the Government not to make further progress with the current Bill’s passage through Parliament. We propose amendments to the Bill if the Government presses on with the legislation, but we recognise that some of these would change the nature of the Bill currently before Parliament, almost entirely.

A Bill of Rights should be for everyone

Human rights are, by their nature, universal. They apply to everyone equally. The state’s legal obligation reflects this fundamental principle. Under the European Convention on Human Rights, the UK State is obliged to secure everyone within its jurisdiction the rights and freedoms defined within the Convention. The Bill of Rights risks carving out groups of people who will have less ability to enforce their rights than others. It also risks making enforcing rights both inside and outside of court more difficult for all. By undermining universality and hindering enforcement, the Bill will result in the UK shirking its responsibility and leaving effective enforcement to the European Court of Human Rights in Strasbourg, which many will not have the time or the money to access.

Bringing rights home, then sending them back

The Bill of Rights Bill will weaken rights enforcement in the UK. It will prevent the courts from enforcing positive obligations under the ECHR. Positive obligations go beyond a duty not to interfere with Convention rights, and require that, in some circumstances, the State must take active steps to protect people’s rights against interference by others. The Bill will encourage the courts to interpret Convention rights as they would have been read in the 1950s, not the twenty-first century. There will be many who will no longer be able to rely on public authorities acting compatibly with the Convention. Some will no longer be able to enforce their rights in the domestic courts. Groups who contacted us with these concerns included those who represent victims of violence against women and girls, care home residents, and those whose family members have lost their life due to the actions of the police or other state actors.

Clause 3 would focus domestic courts on the original text of the Convention, as adopted in 1950, rather than on the case law of the European Court of Human Rights (ECtHR) that reflects the many social changes that have taken place over the past 70 years. It would encourage divergence between UK courts and the ECtHR, putting at risk the positive judicial dialogue between them and the respect that the Strasbourg court pays to UK decisions. Clause 3 also prohibits the courts from interpreting the Convention any more generously than the ECtHR. We see no reason to fetter the decision-making of the UK courts in this way. We consider it crucial that the ECHR can continue to be respected as a “living instrument”. The Government should replace clause 3 with a clause mirroring section 2 HRA.

The doctrine of positive obligations is a central principle of the Convention. The legal basis for the imposition of positive obligations arises from the Convention rights. Clause 5 of the Bill would prohibit the domestic courts from applying any new positive obligations adopted by the ECtHR following enactment of the Bill (“post-commencement interpretations”). It would also require the courts, in deciding whether to apply an existing positive obligation (“pre-commencement interpretations”), to give “great weight to the need to avoid” adopting an interpretation of Convention rights that would result in certain consequences for local authorities that the Government sees as too onerous. The suggestion that positive obligations can be severed from negative obligations and either ignored or applied in a restricted manner is simply untenable given they are core to the protection of Convention rights. It is also clear that positive obligations have resulted in large gains for rights protection that we would not wish to turn our backs on—from protecting victims of domestic violence to inquests into deaths in custody and events such as Hillsborough. The legislation, if passed, would create a variance between rights enforceable in domestic courts and the ECtHR, almost certainly resulting in more adverse judgments from the ECtHR. We are therefore extremely concerned by the restrictive approach to positive obligations contained in clause 5 and believe the Government should give serious consideration to changing its approach.

Removing the obligation to read legislation compatibly with the Convention that currently applies under section 3 of the HRA risks undermining years of settled case law by restoring incompatible legislation. Courts should continue to be required to interpret domestic legislation so far as possible to ensure it is compatible with the Convention, to reduce the number of declarations of incompatibility made so as to provide speedier remedy and resolution for those who seek to enforce their rights. This will also result in fewer applications being taken to the ECtHR and fewer adverse judgments against the UK. Other public bodies should also continue to be required to read legislation in a way that is compatible with the ECHR in order to protect peoples’ rights. On a practical basis, it is not always clear which judgments relied on the ability to “read down” legislation as set out in the HRA. The Bill gives the Secretary of State a power for up to two years to preserve such judgments, by making regulations. We do not see how it will be possible to identify all such judgments made in reliance on section 3 HRA, and in any case, such a wide regulation-making power is inappropriate as it gives to wide a power to the Secretary of State. A clause equivalent to section 3 HRA should be added to the Bill, ensuring that legislation continues to be read compatibly with the Convention and that previous compatible readings of legislation remain in effect.

A rockier road to remedies

Several clauses of the Bill will delay access to effective resolution of incompatibilities and to remedies for claimants. Under the Human Rights Act, where primary legislation is found to be incompatible with Convention Rights the courts cannot strike down the legislation; they issue a “declaration of incompatibility” which the Government is then free to decide whether and how to remedy the incompatibility. Whilst declarations of incompatibility work well for addressing incompatible primary legislation as they preserve parliamentary sovereignty, we believe that their expanded use for secondary legislation serves no purpose and will simply leave incompatibilities in place until the time is found by Government to legislate or introduce a remedial order. In the meantime, the injustice will persist.

The proposal to introduce a new permission stage, which would not permit human rights claims to be brought unless a claimant has suffered “significant disadvantage”, will prevent meritorious claims being heard. This is inconsistent with the UK’s obligations under the ECHR and undermines the primary role that domestic courts play in enforcing Convention rights. The Government should reconsider whether introducing the permission stage will achieve its aims, and whether it would leave the UK in breach of its international obligations.

The ability of the domestic courts to award damages will also be restricted by the Bill. Not only will the amount that can be awarded be strictly limited to that which would be awarded by the ECtHR, but the courts will be obliged to take into account relevant conduct of the claimant (even if it is unrelated to the claim in question) when considering whether to award damages and how much to award. The provision of the Bill which requires “great weight” to be given to the importance of minimising the impact of damages on public authorities, including those that have violated someone’s rights, wrongly shifts attention away from victims and their right to an effective remedy. Clause 18 (judicial remedies: damages) should be amended to remove these provisions from the Bill.

Disregard for existing international legal obligations

The Bill seeks to potentially carve out the State’s liability for human rights violations in the context of overseas military operations. Clause 14, in conjunction with clause 39, paves the way for future legislation to limit the extraterritorial application of the Convention, by excluding certain acts done in the course of overseas military operations. Whilst this clause would not be commenced unless and until the Secretary of State is satisfied that to do so is consistent with the UK’s obligations under the Convention, we believe that this decision should be for Parliament, not a Minister, to make. If the Government wants to change the law relating to the application of Convention rights to overseas military operations and are confident that doing so would comply with our international obligations, it should introduce a new Bill to Parliament; this would allow for proper Parliamentary scrutiny. Clause 14 (overseas military operations) and clause 39(3) (commencement) must be reconsidered.

The Bill, at clause 24, seeks to depart from our international legal obligations by prohibiting a court from having any regard to any interim measure issued by the ECtHR when it is considering whether to grant relief that might affect Convention rights. Given the recent interim decision of the ECtHR concerning the UK-Rwanda Memorandum of Understanding providing for the relocation of asylum seekers, it is hard not to see clause 24 as a reaction to this decision. Interim decisions of the Court are legally binding under the Convention. Ignoring interim measures will undermine human rights enforcement and breach our obligations under the Convention. Clause 24 (interim measures) must be reconsidered.

The role of Parliament

The Government has been clear that it seeks to “rebalance” the constitution—placing a premium on the role of Parliament. We are therefore surprised that the Bill of Rights Bill might make the job of Parliament more difficult. The Bill does not include the requirement which exists under section 19 HRA for a Minister to make a statement on the compatibility of all government Bills with Convention Rights. The Government argues that the section 19 statements constrain innovative policy making. We see no evidence of this. Statements of compatibility should continue to be accompanied by a statement of reasons to be published upon introduction of a Bill. This is important to ensure that Government engages in human rights analysis whilst legislating, and to assist Parliament, and this Committee, with its scrutiny. The Bill should be amended to include a provision to reinstate statements of compatibility upon introduction of a Bill, and to make the provision of a human rights analysis a statutory requirement.

The Courts cannot strike down Acts of Parliament, but they do play a crucial role in identifying when legislation is incompatible with Convention rights. In so doing, they show great respect for the democratic will of Parliament. Clause 7 would require the Courts to go yet further. They would need to treat Parliament in every case as having concluded it has struck the right balance between competing rights or policy aims–even if those haven’t been considered, and then to give “the greatest possible weight” to the principle that it is for Parliament (not the courts) to strike that balance. No Parliament is capable of foreseeing all potential human rights implications in perpetuity. Clause 7 risks inhibiting the Courts’ ability to protect rights in accordance with the ECHR. This may result in more claimants taking their claims to the ECtHR, and more adverse judgments against the UK. The Government should reconsider Clause 7.

The Bill, at clause 25, requires the Secretary of State to lay before Parliament notice of an adverse ECtHR judgment against the UK, or a voluntary UK declaration that it has failed to comply with the Convention. There is nothing inherently problematic in this clause; increased provision of information to Parliament is to be welcomed. However, this notice should be accompanied by an explanation of what the Government intends to do about this incompatibility, and the timescale for doing so. We also recommend that notice should be given to Parliament when declarations of incompatibility are made in the UK courts. We remind the Government that the Convention requires the UK to comply with adverse judgments of the ECtHR; the way in which we comply is for the state to decide and it is right that Parliament might debate any such action. We also sound a warning that there is likely to be a large increase in numbers of declarations of incompatibility as a result of the provisions of the Bill and therefore the remedial regulation processes are likely to be used increasingly frequently. The remedial regulation provisions could be reformed to streamline the process, but we are nevertheless concerned about the volume of regulations that are likely to have to be made.

Tipping the balance and future reforms

Unusually for a Bill of Rights, the Bill also seems to be a vehicle for addressing a small number of specific issues, which, whilst important, we would not expect to see in a statute about fundamental rights. Several of these tip the balance in favour of one right over another, and point to future intentions of the Government, rather than dealing with the mischief they are intended to address directly. For example:

  • Clause 4 requires courts to “give great weight” to the importance of protecting freedom of speech whenever the courts are determining a question which has arisen in connection with that right. It is unclear whether this clause will have any practical effect as is, although the Secretary of State appeared to indicate in evidence to the Justice Committee that the Bill could be amended to tackle concerns around Strategic Lawsuits Against Public Participation (SLAPPs). In our view, the Government has not made the case to separate freedom of speech from the other elements of the right under Article 10 ECHR to freedom of expression, nor is it right to elevate it above other Convention rights without a balancing exercise being undertaken. The Government should reconsider whether clause 4 (freedom of speech) is necessary or appropriate.
  • Clause 6 of the Bill would introduce a new obligation on the courts to “give the greatest possible weight to the importance of reducing the risk to the public” from persons who have been given custodial sentences when they are considering claims that the human rights of a person subject to a custodial sentence (in respect of a criminal offence they have committed) have been breached. The Explanatory Notes to the Bill make clear that these changes will “strengthen the Government’s forthcoming parole reforms” along with strengthening the Government’s hand in contesting human rights claims from prisoners opposing their placement in a separation centre. The courts should and will already give great weight to the importance of protecting the public from dangerous prisoners. However, a clause that seeks to bind the hands of the courts when assessing whether an individual’s rights have been violated is inherently problematic. The Government should reconsider whether clause 6 (public protection) is necessary or appropriate.
  • Clause 8 seeks to insulate future deportation laws from successful human rights challenges by introducing an extremely high threshold for the application of the right to private and family life under Article 8 ECHR. Although States are given a wide margin of appreciation in relation to deportation laws and the balance between the public interest and individual rights to private and family life, the extreme restrictions placed on the courts by clause 8 would almost extinguish Article 8 ECHR rights entirely in such cases. We are concerned that clause 8 may breach the ECHR, and we therefore believe the Government should give serious consideration to changing its approach.
  • Clause 20 seeks to prohibit the courts from properly assessing the deportations under the ‘deportation with assurances’ (DWA) policy. The objective of DWA is to obtain assurances from the Government of the receiving state which are sufficiently credible to allow deportation to take place without infringing the human rights of the deportee or the obligations of the state under international law.
  • Whilst the practical effect of clause 20(3) is likely to be limited, there may be cases where failure to adequately assess the sufficiency of deportation assurances may amount to a violation of Article 6 ECHR (right to a fair trial) and Article 13 ECHR (right to an effective remedy), as the deportee is effectively stripped of the right of effective access to a court and the right to a remedy that a court would otherwise be able to provide. The removal of this judicial safeguard may also lead to an enhanced risk of breaches of Article 6 ECHR rights of persons deported to face trial upon return. We therefore recommend that clause 20 be amended to restore judicial safeguards.

No case for this Bill

The Bill of Rights Bill not only lacks support, but has caused overwhelming and widespread concern. Those who support the Bill in its current form appear to us to be limited in number: they certainly represented a tiny minority of those who responded to the IHRAR review, the Government consultation, our call for evidence, or those who chose to respond to the survey we posted on Twitter, which had over 40,000 responses. The outcomes of the Government’s consultation, independent review, and our own inquiries on the Bill of Rights Bill have not been incorporated into the Government’s proposals. The Scottish and Welsh Governments have expressed concerns about the Bill, and the Northern Ireland Human Rights Commission has pointed out the potential impact on the Good Friday Agreement. There has been no national conversation about our rights framework.

The Bill will introduce large scale uncertainty as the courts grapple with a new, complex, regime. Far from increasing understanding, matters will end up being litigated in order to gain clarity. This does not bode well. Human rights instruments, such as the HRA, are constitutional statutes, which should provide stability to citizens and the courts. They should be easily understood and accessible to all in order to endure. Indeed, we do not think this is a Bill of Rights at all, and recommend that the title of the Bill is changed accordingly. In any case, the Government should not proceed with this Bill: it weakens rights protections, it undermines the universality of rights, it shows disregard for our international legal obligations; it creates legal uncertainty and hinders effective enforcement; it will lead to an increased caseload in Strasbourg; and will damage our international reputation as guardians of human rights.