Reform of the UK’s human rights legislation: consequences for domestic and European human rights protection
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 21 June 2023 (17th sitting) (see Doc. 15782, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Kamal Jafarov). Text
adopted by the Assembly on 21 June 2023 (17th sitting).
1. The Parliamentary Assembly recalls
that the aim of the Council of Europe is to achieve greater unity between
its member States, based on the common values of respect for the
rule of law, democracy and human rights.
2. The Assembly reaffirms its commitment to these values, which
are the true source of individual freedom, political liberty and
the rule of law, principles which form the basis of all genuine
democracy.
3. The Assembly emphasises that respect for the rule of law includes
respect by States for their international legal obligations, including
those under the European Convention on Human Rights (ETS No. 5, the
Convention).
4. The Assembly recalls that, in line with the principle of subsidiarity,
Council of Europe member States are primarily responsible for the
effective implementation and enforcement of the international human
rights norms they have signed up to, in particular those of the
European Convention on Human Rights.
5. The Assembly recalls the importance of mainstreaming human
rights education and ensuring improved public understanding of the
inherent value of core principles such as the rule of law, robust
democratic institutions and effective guarantees for the protection
of human rights.
6. The Assembly considers that the United Kingdom (UK) system
for giving effect to the European Convention on Human rights through
the operation of the Human Rights Act is, in many respects, an excellent example
of an effective domestic mechanism for ensuring that Convention
rights are respected and fully implemented at the national level.
This system also ensures respect for the separation of powers and
for democratic debate in determining how laws and rights should
be developed and balanced. The Assembly commends many of the features
of the Human Rights Act as good examples for member States looking
to successfully embed human rights, and in particular the Convention
rights, in their national legal systems. The Assembly therefore
considers that it would be regrettable if the United Kingdom were
to dispense with such an excellent system that has led to the UK
having one of the lowest number of cases brought before the European Court
of Human Rights and, in particular, of findings of violations against
it, of any State Party to the Convention.
7. Recalling its
Resolution
1823 (2011) “National parliaments: guarantors of human
rights in Europe”, the Assembly is pleased that there are processes
in place in the UK to consider the consequences for human rights and
the rule of law of draft legislation before the UK Parliament, but
considers that further thought might be given to ensuring that such
processes and analysis benefit from sufficient independence, transparency
and due consideration in the legislative process.
8. The Assembly is concerned that recent legislation introduced
by the UK Government to Parliament, and in particular the Bill of
Rights Bill and the Illegal Migration Bill, indicates an increased
willingness on the part of the UK Government, and certain legislators,
to legislate in a way that could risk breaching the UK’s international legal
obligations and thus the rule of law. The Assembly is extremely
concerned at such developments, and in particular what signal that
may send, both domestically and internationally.
9. The Assembly, moreover, expresses concern that both the Bill
of Rights Bill and the Illegal Migration Bill would increase legal
uncertainty and conflicts between UK domestic law and the requirements
of the European Convention on Human Rights – as well as a number
of other international conventions. The Assembly notes that these
concerns have been similarly expressed by numerous civil society
organisations, the Joint Committee on Human Rights of the UK Parliament,
the UK’s national human rights institutions, the Commissioner for
Human Rights of the Council of Europe, the Group of Experts on Action
against Trafficking in Human Beings (GRETA) and the United Nations
High Commissioner for Refugees.
10. The Assembly therefore calls on the UK Government and Parliament
to:
10.1 ensure that robust processes
are in place to ensure respect for the rule of law and, in particular, respect
for the UK’s international legal obligations in legislation proposed
to Parliament. In particular, assessments of compatibility with
the rule of law, including international law and human rights law, should
be undertaken in respect of bills introduced into Parliament. Such
assessments should be undertaken by a body that is sufficiently
independent from the government to be able to provide objective advice
on the rule of law, be available early in the legislative process
and be made public to fully inform Parliament and the public, so
that the legislature can take an informed decision on the implications
of draft legislation before it. Parliament must be allowed adequate
time and information to assess the rule of law and human rights
implications of the legislation before it;
10.2 carefully consider the content of the provisions that,
were they to enter into force, could risk placing the UK in breach
of its international obligations, including the provisions relating
to:
10.2.1 positive obligations (clause 5 of the Bill of
Rights Bill);
10.2.2 overseas military operations (clause 14 of the Bill of
Rights Bill);
10.2.3 interim measures (clause 24 of the Bill of Rights Bill
and clause 53 of the Illegal Migration Bill);
10.2.4 restrictions on the protections for victims of modern
slavery and human trafficking under the Illegal Migration Bill;
10.2.5 the adequacy of safeguards against indefinite or arbitrary
detention of migrants under the Illegal Migration Bill;
10.2.6 protections for children under the Illegal Migration Bill,
including as concerns detention, removal and standards of care for
children, including unaccompanied children;
10.2.7 protections for refugees and stateless persons under the
Illegal Migration Bill;
10.2.8 the adequacy of due process, appeal rights and the availability
of an effective remedy for individuals affected by decisions taken
under the Illegal Migration Bill.
11. The Assembly calls on all member States of the Council of
Europe to:
11.1 ensure that the
European Convention on Human Rights is fully embedded, applied and
enforced in their domestic legal systems and to take adequate steps
to support a culture of respect for human rights and the rule of
law domestically;
11.2 put in place adequate mechanisms to ensure that the human
rights and rule of law implications of draft legislation are fully
and transparently assessed before legislation is passed, by systematically verifying
the compatibility of draft legislation with Convention standards;
11.3 ensure that adequate processes are in place to correct
misunderstandings or misinformation relating to the rule of law
and the impact of the European Convention on Human Rights system;
and make use of available information on the functioning of the
European Convention on Human Rights system;
11.4 develop initiatives for education and training on human
rights and the rule of law in order to foster a culture which understands
and respects the important role that the rule of law and human rights
play in a healthy democracy.
12. The Assembly calls on members States and the instances of
the Council of Europe to develop improved tools in order to counteract
misinformation in relation to human rights and the rule of law more
effectively. In this light, the Assembly welcomes initiatives such
as the work to highlight the impact of the European Convention on
Human Rights system and encourages greater use of such communication
materials. The Assembly also encourages further reflection on how
best to strengthen communication work in relation to the role of
the European Court of Human Rights and the implementation of its
judgments.
