Rights Removal Bill – Gone But Not Forgotten

September 29, 2022

We were encouraged to see that the so-called ‘Rights Removal Bill’ (RRB), which would have repealed the Human Rights Act (HRA) and undermined many of our rights protections, has been dropped from the UK Government’s legislative agenda for the foreseeable future. The Bill contained a wide range of proposals intended to discourage rights-based scrutiny of Government actions, undermine the ways courts ensure Convention rights are upheld and attacked the rights of specific communities, particularly migrants and asylum seekers. The shelving of this Bill should be celebrated; however, we fear the attacks on the HRA and the European Convention on Human Rights (ECHR) are far from over.

The new Prime Minister Liz Truss and her allies have variously decried the ECHR and the ECtHR, with Truss saying during the leadership election that she was ‘prepared’ to withdraw the UK from the Convention, and close ally Suella Braverman – now Home Secretary – claiming that the European Court of Human Rights (ECtHR) is “thwarting our democracy” and the UK must be removed from its jurisdiction.

So why did they scrap the Bill?

Many signs point to internal party politics and smaller issues with the Bill, with some claiming that it was dropped because of its close association with former Justice Secretary Dominic Raab, who backed Rishi Sunak in the leadership election. What is indisputable, though, is that the ideological backing for the Bill still exists within the Conservative Government, and that the “principles and objectives” of the Bill are not being shelved, with revised options to progress them currently being explored. As such, the public and civil society across the UK must continue the fight to protect our rights, and particularly our Human Rights Act.

Many of the worst elements of the Bill are likely to be repackaged in a Rights Removal Bill 2.0 or tacked onto any other loosely related Bills that the Government is progressing or introduced through secondary legislation. The one useful element of the Rights Removal Bill (RRB) is that we now know which elements of the HRA/ECHR are likely to continue to be attacked.  A useful watchlist so we can monitor where this Government may try to quietly reintroduce them into their legislative agenda.

Right to private and family life

The now shelved Bill aimed to prevent UK courts from finding legislative provisions regarding deportation as incompatible with the ECHR Article 8 right to private and family life. Per clause 8 of the RRB, only cases where provisions would cause ‘exceptional and overwhelming’ harm which cannot be mitigated could have been ruled incompatible with Article 8 of the ECHR, which itself diverges from existing European Court case law.

Differentiating access to Article 8 rights on the basis of specific demographic or background has the long-term potential to undermine those rights for everyone. Had the Bill continued, it would have further facilitated a deeply unfair deportation system where courts were unable to decide on a case-by-case basis how to apply Article 8 rights, and even potentially be prohibited from fully applying those rights where deportation was concerned. This assault on the universality of rights and specifically on how those rights apply to migrants and refugees reveals the clear racist motivations of the Bill and is one of the elements most likely to make its way back into legislation due to the Home Secretary’s current stance.

Interim Measures

The very appropriate interim measure issued by the European Court of Human Rights halting the Government’s planned scheme to fly asylum seekers to Rwanda (pending a full judgement), seems likely to be further used by the Government to feed into their ongoing plans to erode the use of convention rights by minority groups like refugees and asylum seekers.

The Rights Removal Bill would’ve ensured that no account would be taken in domestic law of interim measures issues by the ECtHR. This was presumably a direct response to the measures issued by the Court in the Rwanda deportation flight. While the ECtHR would still have had jurisdiction in the UK and retained the ability to rule against the Government, interim measures issued by the Court to allow them to consider a case in more depth while preventing the potential rights violation from continuing would be ignored.

As such, for the Rwanda deportation flight, were the interim measure issued following the adoption of this Bill into law, the UK Government would not have been obliged to follow it and the flight would have went ahead.

Removal of Remedies for Rights Violations

The Bill would have removed several vital remedies courts could enact in response to a rights violation, namely positive obligations and interpretive obligations. Both these remedies were introduced in the HRA and were vital in “bringing rights home” and ensuring that they were enforceable through domestic courts.

Section 3 of the Human Rights Act places an ‘interpretive obligation’ on UK courts, requiring them to, where possible, read domestic legislation compatibly with Convention rights. The removal of this duty would’ve likely resulted in more ‘declarations of incompatibility’, wherein a court declares a provision or piece of legislation as incompatible with Convention rights but does not legally bind the Government to address this incompatibility.

Positive obligations, which are duties placed on Government and public authorities to proactively uphold specific rights in certain ways, also came under attack in the Bill of Rights Bill. Clause 5 of the Bill would have prevented domestic courts from newly interpreting Convention rights as placing these ‘positive obligations’ on public authorities. It would also have strongly discouraged UK courts from continuing to interpret Convention rights it had already considered to place positive obligations as still doing so.

These are only some of the more egregious proposals in the Rights Removal Bill that may yet be revisited by this Government. For a more in-depth analysis of the Bill and its implications for the human rights framework in the UK, you can now read our evidence to the Joint Committee on Human Rights’ Bill of Rights Bill legislative scrutiny, which was submitted shortly before the Bill was shelved. You can also find a copy of the submission, including the questions asked by the JCHR, below.

The brief reprieve provided by the shelving of this Bill should be used to further shore up support for the Human Rights Act, hold the Government’s feet to the fire for their agenda of deregulation and rights removal, and continue making the case for a fully rights-based society across these islands.