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Weekly Update 24 June 2022

Weekly Update 24 June 2022

Dear Friends,

The UK Government published its Bill of Rights Bill this week. We are still analysing the substantive contents of this Bill, which, if enacted, would repeal the Human Rights Act 1998 (HRA) and replace it with a so-called "Bill of Rights". The Bill has profound implications for the effective protection of rights under the European Convention on Human Rights in UK law and for the devolution settlement, for which protection of Convention rights is fundamental. It also raises serious questions about the UK's fulfilment of its international obligations under the Convention, despite the indications of the Bill's sponsor, Justice Secretary Dominic Raab MP, that he is not advocating for the UK to withdraw from it. It therefore also has very grave implications for the entire European system of human rights protection, which is why the President of the Parliamentary Assembly of the Council of Europe yesterday expressed the Assembly's concerns about the Bill, following a debate in the Assembly which is indicative of the international condemnation the proposals are already attracting.

Some early observations can be made, however, about the extent to which this Bill has benefited from wide consultation and public input and deliberation, as any national human rights instrument should. The Bill, which runs to 39 pages of provisions, is accompanied by a Government consultation response document that numbers only 25 pages of substantive discussion. It addresses the 12,873 submissions that were received in response to the December 2021 consultation paper on a Modern Bill of Rights. Many of the Bill's provisions embody proposals made in December 2021 that were strongly opposed by respondents. To give only three examples:

  • on introducing a test of "significant disadvantage" to prevent claimants from bringing "trivial" human rights cases, 90% were opposed;
  • on abolishing the obligation on courts to interpret legislation compatibly with Convention rights (HRA section 3) 90% were opposed;
  • on the duty of Ministers to make a statement on the compatibility of new Bills with Convention Rights (HRA section 19), which the Bill of Rights Bill seeks to abolish "to facilitate innovative policy making", only 81 of the 3,702 submissions that addressed this aspect of the HRA thought there was a case for change.

In all of these instances, and many others, the Bill persists with the December 2021 proposals despite the limited support they received in the consultations. The December proposals were already startling in the extent to which they went beyond the remit and recommendations of the Independent Human Rights Act Review panel, which had consulted and deliberated for more than a year, and whose report the Government claimed to be responding to.

In recent weeks, as it became clear that a Bill was taking shape, the Government still had the option of publishing it as a Draft Bill for pre-legislative scrutiny, enabling wider public participation and scrutiny by a range of parliamentary committees. A plea for pre-legislative scrutiny was made by parliamentarians chairing the House of Commons Justice Committee, the House of Commons Public Administration and Constitutional Affairs Committee, the House of Lords Constitution Committee and the Joint Committee on Human Rights. The Bingham Centre joined more than 150 other civil society organisations in a letter to support this call for pre-legislative scrutiny. Unfortunately the Government has chosen to reject this approach, so the focus now moves to parliamentary debates which we hope to assist with our analysis of the Bill.

This Update also brings you news of our activities in the field of public engagement and education on Rule of Law issues. In partnership with the organisation EachOther, the Bingham Centre is launching a series of videos on the Rule of Law aimed at young people. We are also undertaking a project for the EU Committee of the Regions on youth engagement in local and regional democracy, which includes a survey to which readers are very welcome to respond (closing date 3 July 2022).

Our upcoming events include the launch of the new Routledge Handbook of Law and the COVID-19 Pandemic, where the barrister and public legal commentator Adam Wagner will speak alongside the book's editors, Joelle Grogan and Alice Donald of Middlesex University. As previously advertised, we also invite readers to register for events on current issues in trade law, organised by the Bingham Centre's Dr Julinda Beqiraj, Maurice Wohl Senior Fellow in European Law at BIICL: these include Global Governance at a Crossroads: Finding Solutions to Challenges Facing the Multilateral Trade System (29th June); and The 22nd BIICL Annual WTO Conference. Climate Change: Border Carbon Adjustment (BCA) Approaches and the WTO (15th July).

You can read the whole Weekly Update here.

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