Merris Amos

8 November 2015

According to today’s Sunday Times, a draft of the Government’s much awaited plans to replace the Human Rights Act (HRA) with a British Bill of Rights have been leaked to it. The veracity of this claim has not been put to the test but the contents of the Bill of Rights, as reported, fit the current state of play so it is likely that the document in its possession is an accurate reflection of what is going on, and the development of thinking, even if it is not the final version, which according The Sunday Times, we won’t have for another four weeks.

The good news is that some of the most concerning aspects of previous plans appear to have been dropped. In The Sunday Times article it is reported that the UK will remain a member of the European Convention on Human Rights (ECHR) system of protection and that individuals from the UK will still be able to make an application to the European Court of Human Rights (ECtHR). It is not reported that access to human rights protection will be limited for some groups, such as prisoners and foreign nationals; that the judgments of the ECtHR will be advisory only; or that section 3 of the HRA, the obligation to interpret law compatibly with human rights principles, will be repealed.

As was promised in the Conservative Party’s pre-election manifesto, it is reported that the overarching objective remains to “restore common sense to the application of human rights in the UK”. To this end, there will be no equivalent of section 2 of the HRA and judges will be told they don’t have to follow the judgments of the ECtHR and are free to follow the common law and human rights judgments from courts around the world. Parliamentary sovereignty may be enshrined in law leaving it up to MPs to decide how to respond to the judgments of the ECtHR. Specific protection will be provided to protect the work of journalists from interference. The Bill of Rights, unlike the HRA, will not have extra territorial effect and the armed forces will be protected from people “using human rights law to sue for damages”. It is also reported that the Bill of Rights will limit the amount of compensation “that can be won by those claiming their human rights have been infringed by public bodies” although this will not be a cap on the level of damages. Finally, it is reported that only claims that meet a “certain level of seriousness” will be considered by courts.

Many of the proposed changes to the fundamentals of the HRA by the Bill of Rights are cosmetic. Not including an equivalent of section 2 of the HRA and encouraging judges to follow common law and the jurisprudence of other courts around the world will make little real difference in practice to how courts currently adjudicate in HRA claims. Furthermore, the sovereignty of the Westminster parliament is well established in law, there is no need to remind judges of this fact. For example, British judges still haven’t secured the vote for prisoners - this is a decision which remains very much in the hands of Parliament. A “seriousness threshold” for claims under the Bill of Rights is also likely to have little impact in practice. With current limits on legal aid and access to justice, very few non serious claims actually make it to the courts anyway, it will be interesting to see in the consultation document what examples are given of the supposed “non-serious claims.”

The most concerning aspects of the new Bill of Rights, as reported in The Sunday Times, are the limit on damages to be awarded for a breach of human rights and the removal of the extra territorial effect of human rights law. It is reported that this is in response to the revelation in September 2015 that “legal challenges over incidents in Iraq and Afghanistan had cost the taxpayer £85m”. The extra territorial effect of the ECHR, where countries exercise their authority abroad or have “effective control” of territory, is now a key part of ECHR and HRA jurisprudence. Whilst the UK remains within the ECHR system it must comply with this jurisprudence or face the fact that if claims from soldiers or their families, or from civilians abroad, are not possible under the British Bill of Rights, these claims will be made direct to the ECtHR and it will most likely find the UK in breach of the ECHR. It is possible that the UK will try to enter a derogation to the ECHR under Article 15 every time it deploys the armed forces abroad, but the limits on this are very tight. It is not possible, for example, to derogate from Article 3 (torture, inhuman degrading treatment or punishment). It would be far better to address concerns about the operation of human rights law abroad with effective training to ensure that the human rights of British soldiers and civilians are not breached. I would also encourage anyone who is confused about this jurisprudence to read the facts of the claims lodged under the HRA against the Ministry of Defence concerning events in Iraq and Afghanistan.

Section 8 of the HRA, which controls the award of damages for the breach of human rights, is one of the most detailed sections of the HRA. There are actually very few damages awards made by courts utilising this power and those awards which have been made are very modest. For example, £5,000 was awarded where a woman established that police had failed under Article 3 to investigate her claim that she was being held unlawfully in domestic servitude. £10,000 was awarded to a woman who had established that hospital staff had allowed her seriously ill mother to escape and commit suicide. Damages awards by the ECtHR, whilst slightly higher, are also fairly modest. The HRA is not known as having created a “compensation culture”. Imposing a limit might encourage lower settlement awards – the amount agreed in compensation so that the claim does not end up in court. But limiting damages will have little impact on the cost of inquiries ordered where this is found by a court to be necessary to comply with Article 2 (the right to life) or Article 3 (torture, inhuman or degrading treatment or punishment). As noted above, a far better cost saving strategy would be to improve training to avert breaches of human rights in the first place.

Limiting the amount of damages to be awarded will also have the effect of increasing the number of applications against the UK to the ECtHR. An applicant loses his or her victim status before the Court if he or she has already brought the same claim at the national level and received adequate redress. A low damages award may not be regarded by the ECtHR as adequate. Similarly, the ECtHR will not accept an application where the victim has failed to exhaust domestic remedies. A Bill of Rights claim resulting in a low or capped damages award will not be considered an effective remedy thereby allowing the application to proceed although the substance has already been considered at the national level. Currently the UK is having its best year ever before the ECtHR with only two violations found to date from the nine applications considered. It would be ludicrous to return to the bad old days of 40 applications considered by the ECtHR and violations found in 30 as happened in 2002.

The Sunday Times has started the ball rolling prior to the official consultation document being released. It could be a leak designed to test the waters on some of the more controversial issues, such as the two I have highlighted above. Or we might see a document reflecting exactly what has been reported. What is proposed is not as draconian as it could be, but the limit on damages and extra territorial effect could jeopardise the UK’s continued membership of the ECHR system. All is likely to be revealed in the next month and a three month consultation will follow where we will all have the opportunity to put forward our views.