On 22 June 2022 Dominic Raab laid the new draft Bill of Rights Bill before Parliament ("the Bill"). The Bill "reforms the law relating to human rights by repealing and replacing the Human Rights Act 1998 ([the HRA])."Such reform is a long-held ambition of the Justice Secretary and it appears that last week's ruling by the European Court of Human Rights (Strasbourg) in relation to the Rwanda flight has sparked a flurry of activity in the Ministry of Justice to place the Bill without delay.
We will be providing a complete analysis of the Bill in the coming days, however, we set out our initial thoughts below based on the Government's briefing regarding the contents of the Bill this morning.
The Government consulted on proposed reforms earlier this year to which Mishcon de Reya submitted a detailed response (which can be found here). The consultation closed on 19 April 2022; however, the Government is yet to publish any report or response to the consultation and has instead moved straight to placing a Bill before Parliament. Unfortunately, the concerns raised in our consultation response have not been addressed.
A fix for Government rhetoric – Rwanda
Commentary surrounding the Bill has suggested that its introduction now may be retaliation for perceived "lefty lawyer" overreach in relation to the planned Rwanda asylum plan. At the time that the flight was unable to depart, the Prime Minister railed against "legal eagles, liberal-Left lawyers" who are "trying to make this difficult."
The legal battle which had led to these statements involved the UK courts refusing to grant interim relief, accepting that while the Rwanda plans raise significant legal issues in relation to the Refugee Convention and human rights law, those facing removal could wait in Rwanda rather than the UK pending final determination of their cases (the substantive judicial review hearings are expected to take place in July). That said, the Supreme Court judgment of Lord Reed was striking in its rebuttal of the Prime Minister's comments. He held: "In bringing [the application for judicial review of the Home Secretary's decision that certain asylum clams can be determined by the Rwandan authorities], the appellant's lawyers were performing their proper function of ensuring that their clients are not subjected to unlawful treatment at the hands of the Government".
The UK courts' decisions not to grant interim relief were then appealed to Strasbourg. Strasbourg made an interim order that the deportation should be postponed pending the outcome of the substantive hearings in the UK.
Throughout this process, the Government publicly railed against the lawyers and courts considering and applying the law. In an interview to ITV, the Prime Minister referred to withdrawal from the European Convention on Human Rights ("the Convention") as being an "option" that is "under constant review".
The text of the Bill does not withdraw the UK from the Convention. However, it does repeal section 3 of the HRA, through which UK courts are required to interpret our laws in a way that is compatible with the Convention. In doing so, Mr Raab states that "the Bill enhances the role of Parliament in responding to adverse Strasbourg judgments against the UK. The Bill also affirms Parliament's supremacy in the making of laws." This is despite the IHRAR panel's recommendation that no reform to section 3 was necessary, to which the Government stated in its consultation that it was "minded to agree".
Further, the Bill does not solve the Government's Rwanda deportation issues.
For as long as the UK remains a signatory to the Convention, Strasbourg will retain supremacy over the UK courts. Indeed, Strasbourg's judgment heralds the likelihood of future successful appeals on the basis that there are "serious triable issues" regarding the UK's decision to treat Rwanda as a 'third safe country' given the "risk of treatment contrary to the applicant's Convention rights as well as the fact that Rwanda is outside the Convention legal space (and is therefore not bound by the Convention) and the absence of any legally enforceable mechanism for the applicants return to the [UK] in the event of a successful merits challenge before the domestic courts…" It would seem that there are many months (or possibly years) of legal challenges to the Government's policy ahead.
In addition, section 15 of the Bill, which seeks to limit the types of cases that individuals can bring before the UK courts, forces applicants to take their cases to Strasbourg. Mr Raab's assertion that UK courts and Parliament will have the "last word" on law under the Bill is inaccurate. A decision to ignore a ruling against the UK by the Strasbourg court would be a breach of international law. The suggestion that the Bill grants Parliament and/or UK courts such power appears to create more issues than it solves.
What next?
Legal commentator Joshua Rozenberg QC queried last week whether "the UK's self-generated clashes with both European courts this week should be categorised as conspiracy or cock-up"? This remains to be seen.
We will wait to see the extent to which the Government's use of polarising rhetoric will sway Parliament in favour of a Bill that poses a clear threat to the "quintessentially British" values of human rights and the rule of law.