The current/outgoing government on 22 June 2022 introduced to Parliament the Bill of Rights Bill. For those (like me) who have been struggling to keep up with the news of late, the legislation will, if it becomes law, scrap and entirely replace the Human Rights Act.
The Bill of Rights Bill does not withdraw the United Kingdom from the European Convention on Human Rights. It does not end the principle that domestic judges here in the United Kingdom can and must give effect to convention rights. It does not exempt public authorities from compliance with human rights law. Nor does it do away with declarations of incompatibility by the courts.
At least, it mainly doesn’t do these things. I will return to that.
What it does do is seek to limit the scope of judges to apply human rights law in certain ways. Several clauses or subclauses of the legislation are devoted to the pet hates of right wing political activists. One clause is devoted to freedom of speech. Another to overseas military operations. Others address positive obligations, the role of Parliament, who can bring challenges and more. It reads as Daily Mail headlines literally made law.
Inevitably, some of these clauses are devoted to the ultimate right wing bête noir, the deportation of foreign criminals.
Deportation and private and family life
There are two clauses of the Bill of Rights Bill dealing directly with deportation. The first is clause 8, entitled ‘Article 8 of the Convention: deportation’. The whole clause is set out below with commentary.
Article 8 of the Convention: deportation
(1)This section applies where a court is considering, in relation to a decision of the Secretary of State to make a deportation order in respect of a foreign 40 criminal (“P”), the question whether any provision of primary or subordinate legislation relating to deportation (a “deportation provision”) is incompatible with the right to respect for private and family life.
The clause applies specifically to deportation, not to other forms of immigration control. Usually, the deportation procedure is used in respect of foreign criminals. It is not limited to those with convictions, though; it can be and is used against any foreign national the Home Secretary considers it to be ‘conducive to the public good’ to deport.
Oddly, the clause is only relevant where the question arises of whether “primary or subordinate legislation” — which must include the Immigration Rules — is compatible with the right to respect for private and family life. This question rarely if ever arises in deportation cases; the important question is usually a different one, which is whether the person’s deportation would breach their private and family life. As the recent Supreme Court case of HA (Iraq) v Secretary of State for the Home Department  UKSC 22 confirmed (see our write up), existing provisions of domestic law are all compatible with Article 8 of the European Convention on Human RIghts.
(2) No deportation provision may be found to be incompatible with the right to respect for private and family life unless the court considers that the provision requires a public authority to act in respect of P in a way that would result in manifest harm to a qualifying member of P’s family that is so extreme that the harm would override the otherwise paramount public interest in removing P from or requiring P to leave the United Kingdom.
This is the main provision and it is curiously limited in scope. It prevents a judge from ruling that a ’deportation provision’ (meaning a piece of deportation legislation, including Immigration Rules) is incompatible with the right to respect for private and family life. Given that no judge has ever made such a finding, as far as I know, it seems pretty odd to stop this from happening in future. On the face of it, the stuff that follows about extreme harm and so on is therefore never likely to arise.
There is another possibility, which is that extremely tough new deportation rules could later be introduced in breach of Article 8 ECHR, in which case judges would be prevented from making a declaration of incompatibility. This would not prevent a person affected from appealing to the European Court of Human Rights, though.
It also seems unlikely that any such rules would be introduced later, at least it does to me. Why not just do it now in primary legislation, as previously with the Immigration Act 2014? Why not just get on with it? Clause 8 looks like posturing.
(3) For the purposes of subsection (2), harm is “extreme” only if—
(a) it is exceptional and overwhelming, and
(b) it is incapable of being mitigated to any significant extent or is otherwise irreversible.
This is tough talk but seems irrelevant for the reasons spelled out above. But the language here suggests that Parliamentary draftsmen do seem to be rapidly running out of language to describe exceptional circumstances. Like Spinal Tap guitarist Nigel Tufnel, Dominic Raab has asked for the maximum volume on his amplifiers to be labelled “11”.
(4) For the purposes of subsection (2), it is in only the most compelling circumstances that—
(a) the court could consider that removing P from or requiring P to leave the United Kingdom would cause extreme harm to a member of P’s family other than a qualifying child, and
(b) the court could not reasonably conclude that the strong public interest in removing P from or requiring P to leave the United Kingdom outweighs harm to a member of P’s family other than a qualifying child.
Again, this is tough talk but looks irrelevant because it is explicitly tied to subclause (2).
(5) In this section—
“deportation provision” has the meaning given in subsection (1);
“qualifying child”, in relation to P, means a person—
(a) who is under the age of 18,
(b) with whom P has always had and continues to have a genuine and subsisting parental relationship, and
(c) who is a British citizen or has lived in the United Kingdom for a continuous period of seven years or more;
“qualifying member of P’s family” means a member of P’s family—
(a) who is a qualifying child, or
(b) who is otherwise dependent on P and is a British citizen or is settled in the United Kingdom within the meaning of the Immigration Act 1971 (see section 33(2A) of that Act);
“right to respect for private and family life” means the right set out in Article 8 of the Convention.
Again, none of this really seems to matter. But I note that the requirement always to have had a genuine and subsisting parental relationship with a child is new. The intention here may be to prevent parents winning deportation cases by pretending to return to the bosom of their family. But the wording is far wider: the impact might potentially be to prevent a parent succeeding where that parent has spent more than a few months in prison. It punishes children anew where a parent has disengaged from family life for whatever reason but has later returned to it.
Deportation and Abu Qatada
Clause 20 is also devoted to appeals against deportation. Except, not really. Some nine years after he was actually deported to Jordan under existing legislation and in compliance with the European Convention on Human Rights, the Bill of Rights Bill — clearly a timeless piece of legislation to be mentioned in the same breath as Magna Carta and, er, the actual Bill of Rights, for centuries to come — seeks to ensure that he could be deported again. Even though he was actually deported last time.
The clause is concerned only with deportation appeals in which the person facing deportation seeks to rely on the right to a fair trial. I would estimate the average number of people to whom this applies on an annual basis is zero. But where a person does so, the clause provides that the appeal must be dismissed unless the judge considers that the right “would result in a breach of the right to a fair trial so fundamental as to amount to a nullification of that right.” This is literally the test already set out in Strasbourg and domestic case law. In fact, it is the test stated in the Strasbourg case of Othman v United Kingdom (Application no. 8139/09) at paragraph 260, which concerned the deportation of… Abu Qatada.
So far, so utterly pointless. I suppose an argument could be made that the Bill of Rights Bill would prevent any future softening of the test, but that is to preempt a problem that does not yet and is not likely to exist.
The same can be said of subclause 20(3), which concerns ”deportation assurances”. These are usually referred to as ”diplomatic assurances”. They are assurances from the government of the country to which a person is to be sent concerning how that person will be treated in future.
This subclause is a classic of the genre of setting out an apparently tough general rule but then adding in a clear exception which entirely undermines the general rule. It begins by saying that a judge must “presume that the Secretary of State’s assessment of those assurances is correct” and then accordingly “treat the assurances as determinative of the appeal” and dismiss that appeal. On the face if it, this is an appalling interference with judicial independence and the rule of law.
But… the subclause then goes on:
unless the relevant tribunal considers that it could not reasonably conclude that the assurances would be sufficient to prevent a breach of the right to a 5 fair trial so fundamental as to amount to a nullification of that right.
So what is the point of the first parts? This is terrible, utterly pointless, vacuous legislation.
Interim measures of European Court of Human Rights
Rule 39 is the urgent injunction procedure of the European Court of Human Rights. It is one of the rules of the court. It enables the court to require a party to a case to do something or refrain from doing so pending a final decision by the court. The court will only issue a rule 39 ruling where the applicant “faces a real risk of serious, irreversible harm”.
These Rule 39 rulings came to public attention during the first failed Rwanda flight. The removals to Rwanda were due to take place before the courts had considered and made a decision on their legality. Those facing removal to Rwanda applied for injunctions preventing their removal until the outcome of the main court case was known, arguing that the status quo should be maintained in the meantime and that the risk of harm on removal made it inappropriate to allow them to be used as test subjects before the issues had been properly considered in court. A judge in the United Kingdom ruled that it was fine for them to be removed because they could always be brought back later if they did win their case. An appeal against this surprising decision then failed on the basis the judge had committed no legal error in reaching his conclusion.
Then, at least one of those facing removal applied to the European Court of Human RIghts for a Rule 39 injunction preventing their removal. The duty judge issued the injunction. Others still facing removal, whose cases had so far been rejected in the UK, then took this to other UK judges and asked that their cases be treated in the same way given that a legal precedent had been set. Their requests were granted and they were also granted injunctions, basically because of the Rule 39 injunction.
Clause 24 seeks to prevent this happening again. It prevents domestic judges from having regard to Rule 39 measures. It rather looks as if the clause was inserted after the Rwanda flight.
Longer term impacts
Under the Bill of Rights Bill, the courts would no longer be obliged so far as possible to interpret domestic law in a way that is compatible with human rights law. The weird and very un-British ’introduction’ clause makes this intention clear, although no more so than the scrapping of the Human Rights Act and the simple omission of such an obligation from the new legislation. Removal of the duty does not mean that judges will not choose to do so as a matter of policy, however. One of the longstanding rules of interpretation is that legislation is, where possible, interpreted in a way that is compatible with international obligations to which the government has acceded.
Clause 16 might well have an impact in so-called strategic litigation, where charities or others attempt to bring legal challenges on behalf of their claimed client group. This provision seeks to restrict standing, meaning who can or cannot bring a case:
The applicant is to be taken to have a sufficient interest in relation to the act (or proposed act) in question only if the person is (or would be) a victim of the act (or proposed act).
Clause 15 requires permission to be given before a challenge can be brought. Permission would probably not be required in the immigration tribunal because of the way rights and grounds of appeal operate and because clause 15 is restricted to free standing human rights challenges. Given that permission is needed for an application for judicial review in any event, it is not immediately clear how this makes any difference.
Mark Elliott has put together an excellent analysis of the long term implications of the Bill of Rights Bill for the United Kingdom’s compliance with developing human rights law and norms. In short, it looks like bad news. We may see divergence over time. Trafficking victims, for example, would not benefit from the developing jurisprudence on Article 4 of the European Convention on Human Rights.
But the fact is that the United Kingdom remains a state party to the European Convention on Human Rights as interpreted by the European Court of Human Rights. The United Kingdom continues to bound by those obligations. The Bill of Rights Bill would like to pretend otherwise but, as Mark says, the Bill “does not change the position in international law one iota.”
The Bill of Rights Bill is a piece of legislation as inelegantly drafted as it is named. It will be called the Bill of Rights Act once it becomes law. We already have a Bill of Rights from 1689, a crucial document on our journey towards a Parliamentary democracy. It was a such a good name that the United States stole it for their own landmark Bill of Rights of 1789.
It seems very likely that it will become law, although I note that the well-informed Joshua Rosenberg thinks perhaps not. My own view is that the next leader of the Conservative Party — and therefore also Prime Minister — would be beholden to the ever further far right of the party and therefore that it would be political suicide to abandon this Bill on assuming office.
Even if the Bill of Rights Bill does become law, the only reason future generations are likely ever to know Dominic Raab’s signature piece of legislation is as an example of pointless folly akin to the Dangerous Dogs Act 1991.