Government Open Consultation Human Rights Act Reform: A Modern Bill of Rights
A consultation to reform the Human Rights Act 1998.
This consultation closes at 11:59pm on 8 March 2022
Questionnaire (See page 111 of the consultation paper)
Consultation Paper:
Respond Online:
https://www.gov.uk/government/consultations/human-rights-act-reform-a-modern-bill-of-rights
1. We believe that the domestic courts should be able to draw on a wide range of law when reaching decisions on human rights issues. We would welcome your thoughts on the illustrative draft clauses found after paragraph 4 of Appendix 2, as a means of achieving this.
The United Kingdom signed the ‘Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 005)’ on 4 November 1950, and ratified it on 8 March 1951. Ultimately, it entered into force on 3 September 1953. Currently, the United Kingdom is bound by the decisions of the European Court of Human Rights and is obligated to comply with its judgments. It is highly regrettable that the Human Rights Act Reform: A Modern Bill of Rights consultation paper is so critical of the ECHR and proposes HM Government’s intention to denounce the treaty and ensure it does not apply to the United Kingdom. Currently, the United Kingdom is undergoing a great political upheaval, especially due to extensive executive overreach as a result of the coronavirus pandemic and the highly restrictive legislation that has been enacted, which has drastically reduced the freedoms and rights of the people of the United Kingdom. Indirectly, as a result of the legislation, discriminatory acts have increased upon those who wish to remain unvaccinated against Covid-19. Therefore, due to the extensive executive overreach, and the repeated refusal, ignorance of the legislature and judiciary to intervene in the executive overreach, we need the ECHR and the learned opinion of the ECtHR now, more than ever.
However, it is clear that in relation to the illustrative draft clauses, found in Appendix 2 of the HRAR consultation, Option 1 appears to be a narrower interpretation than Option 2, because Option 2 enables the courts, when deciding a human rights question to have regard to the text of the right and, in construing that text, have regard to, inter alia, to the travaux préparatoires of the ECHR. It further permits the courts to have regard for the development of any common law jurisdiction or a judgment of the ECtHR. Therefore, Option 2 is better than Option 1 because it is more expansive and ultimately allows for a wider interpretation.
It is imperative that the travaux préparatoires are alluded to when courts make a decision. There is so much information that can be garnered from such records. For example, in relation to Article 1D of the Refugee Convention 1951, which discriminates against Palestinian refugees by disallowing them from relying on the Convention, if we look at the travaux préparatoires, it is clear that the original intention of the Convention’s drafters was to permit them to rely on it. Therefore, the travaux préparatoires can demonstrate the true intention of the parties at the time of drafting and can helpfully assist the courts in interpretation (if the Refugee Convention 1951 was interpreted properly, with reference to the travaux préparatoires, which is demonstrated in the article at footnote 2, Palestinian refugees would be able to rely on the Convention and would not be in the terrible situation they are currently in).
Furthermore, it would be useful for the domestic courts, in my opinion, to have more regard to judgments from other common law jurisdictions and other judgments of the ECtHR. Henceforth, although Option 2 is a better option than Option 1, I really do stress the need to ensure that, whilst we recognise parliamentary sovereignty, we also recognise the key check and balance that is the ECtHR to ensure the law of the United Kingdom remains humane, in line with international law, and fully compatible with ECHR.
2. The Bill of Rights will make clear that the UK Supreme Court is the ultimate judicial arbiter of our laws in the implementation of human rights. How can the Bill of Rights best achieve this with greater certainty and authority than the current position?
Although the sentiment of ‘judicial sovereignty’ is something I agree with, I strongly believe that having the learned opinions of the Strasbourg court is welcome, especially due to the fact that the legislature are attempting to limit the judiciary’s interpretation of the Human Rights Act 1998 and the ECHR by way of this new Bill of Rights. In many ways, domestic courts are best placed to interpret laws, but if you see my comments at Question 10, you will notice that in some cases the UK courts were clearly misguided as to the interpretation of legislation when a young boy was trafficked in the United Kingdom and forced to work on a cannabis farm. He was wrongly prosecuted (and appeal dismissed) in the domestic courts, but the ECtHR held that he had been a victim of modern slavery and should be treated as such.
3. Should the qualified right to jury trial be recognised in the Bill of Rights? Please provide reasons.
There is a strong case for recognising the right to jury trial in the Bill of Rights. As recognised in the consultation paper, such rights have been clearly denoted in the Magna Carta 1215 and the Bill of Rights 1689. Of course, it is one of the pinnacles of the right to trial by jury, and has a strong historical legal tradition which must be recognised going forward.
4. How could the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers through injunctions or other relief?
You are correct in your assertions that freedom of expression is ‘a unique and precious liberty on which the UK has historically placed great emphasis in our traditions of Parliamentary privilege, freedom of the press and free speech, and that it is defined at section 12 of the Human Rights Act 1998. It is right that the government is ‘committed to maintaining a free and open internet, in line with our democratic values’. I agree that here is an issue with a small number of private companies who control most social media, such as Facebook, Twitter etc., it is evident that these companies are also intent on silencing the views of dissenters with the public narrative that is wanted by these companies and those in Government who can effectively lobby these companies to comply with restrictions on freedom of speech.
You have mentioned that you intend to ‘[strengthen] the protection for freedom of expression in the Human Rights Act’. I agree with this principle in general, and the suggestion that a stronger and more effective provision should be created. Freedom of expression is also important in Academia, and we have seen an ever-increasing amount of ‘woke’ behaviour at many academic institutions in this country; they are trying to silence the views of dissenters and those who do not agree with such views. Dissent is very important in a free and democratic society. In relation specifically to journalists’ sources, what exactly are your intentions?
5. The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations above. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?
This relates to the ECHR protected right of ‘freedom of expression’. The 2021 HEAR document determines that:
Allocation of responsibility within a Convention state is also not determined by the Convention, as the ECtHR clarified in Handyside v United Kingdom – 5493/72 (1976) when discussing article 10 of the Convention (the right to freedom of expression). It is allocated to the UK’s national authorities: ‘… Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force…’
R (Animal Defenders International) v Secretary of State For Culture, Media and Sport (2008):
- Sections 319 to 321 of the Communications Act 2003 prohibited political advertising. Animal Defenders International, which was a not-for-profit company the aim of which was to suppress animal cruelty lawfully, wished to launch a media campaign to ‘public attention towards the use of primates by humans and the threat presented by such use to the survival of primates.’ The Broadcast Advertising Clearance Centre declined to clear the advertising campaign for transmission on the television. It did so as it would breach the prohibition on political advertising. It was common ground that the prohibition, contained in the 2003 Act, did interfere with the article 10 Convention right (freedom of expression);
- The House of Lords held that the interference was not such as to breach that right. It therefore did not grant a declaration of incompatibility under section 4 of the HRA. The House of Lords’ conclusion was subsequently vindicated by the ECtHR.
Courts must always allow for freedom of expression to be taken into account as society benefits greatly from wide information and debate. If there is legal protection afforded, individuals may feel a greater sense of security in exercising their right of freedom of expression.
6. What further steps could be taken in the Bill of Rights to provide stronger protection for journalists’ sources?
By ensuring that informants are well-protected in the legislation. I agree with your assertions at [217] of the consultation document that the Government believes that journalists have an important role to play in society, providing scrutiny and holding those in positions of power to account. By expressly making provision for journalists’ sources in the Bill of Rights, they can be properly protected.
Page 544 of IHRAR:
“The Irish courts would, however, be likely to look to the Convention where constitutional rights were not well-developed. For instance, there were cases Keena v Mahon [2009] IESC 64 , [2010] 1 IR 336where the Convention was relied upon given the greater development of its jurisprudence concerning freedom of expression and journalistic privilege in particular (Goodwin) . Other areas where there was greater resort to the Convention were where Convention case law was very developed, such as art. 2 of the Convention i.e., where positive obligations had been developed. It was also noted that the history of Irish constitutionalism was historically also that of UK constitutionalism. While it is famously said that the UK has no written constitution , and has moreover a flexible constitution a central feature of which is the unlimited power of parliament , the idea of a parliament with limited powers where moreover the limits on those powers were enforced by court action if necessary , was a part of the law of the United Kingdom or at least the British Empire since that was the legal basis of the establishment of colonial and Dominion legislatures . Specifically in terms of Ireland the question of self-government was a legal issue bound up with the nature of the United Kingdom The questions of the Act of Union , Repeal of the Union, The Home Rule Bills of the late 19th and early 20th centuries and the question of Dominion Status etc, which convulsed Ireland and to some extent the UK generally were questions of Constitutional l Law and formed the backdrop to the development of Irish thinking about constitutions in the 20th century. It might be said that a number of ‘happy accidents’ had led to the current position in Ireland.”
There is little need for this proposal, especially if regard is had for the wider context and such a proposal is unnecessary.
7. Are there any other steps that the Bill of Rights could take to strengthen the protection for freedom of expression?
The emphasis on freedom of expression is a well-discussed topic in the IHRAR consultation, focused on from para [204] onwards. I agree that freedom of expression is unique and precious (a liberty on which the UK has historically placed great emphasis in our traditions of Parliamentary privilege, freedom of the press and free speech in particular. The HRA 1998 sought to recognise this to some degree, in section 12(4) of the Act, which directs the courts to have ‘particular regard to the importance of the Convention right to freedom of expression’.
Public interest is overwhelmingly assisted by protection for freedom of expression in a free and vibrant media. Such freedom afforded is paramount to our democracy, ensures clear transparency and accountability whilst ensuring fair democratic debate.
The right of freedom of expression is adequately protected under Article 10 of the HRA. The Government gives few, if any, examples of how it could be better protected in the proposed Bill of Rights and there is no case for reform.
8. Do you consider that a condition that individuals must have suffered a ‘significant disadvantage’ to bring a claim under the Bill of Rights, as part of a permission stage for such claims, would be an effective way of making sure that courts focus on genuine human rights matters? Please provide reasons.
Such a permission stage for human rights claims is a ridiculous idea and undermines the very principle of what it means to bring a human rights claim. For example, what would be the definition of a ‘frivolous’ or ‘spurious’ human rights claim? Where a claimant genuinely feels that their human rights have been violated, notwithstanding as to the Government’s acquiescence or rejection of such a claim, do they not have the right to bring it? Henceforth, it is right that the burden is on public bodies to apply to courts to strike out frivolous or spurious human rights claims; the court can then make a decision as to whether to proceed with the claim. Also, it is noted that the intention of the Government is to introduce a requirement that claimants suffer ‘a significant disadvantage before a human rights claim can be heard in court’. What is the definition of ‘significant disadvantage’? Please be more specific in this respect. Otherwise, it may take more time working out, at your proposed permission stage, as to whether there has been a ‘significant disadvantage’.
9. Should the permission stage include an ‘overriding public importance’ second limb for exceptional cases that fail to meet the ‘significant disadvantage’ threshold, but where there is a highly compelling reason for the case to be heard nonetheless? Please provide reasons.
If the reckless intention to include a permission stage is implemented, then I feel that this would be requisite. Although, what is interpreted as ‘an overriding public importance’. Where is the balance in this regard between the interests of the State and the interests of the individual. Indeed, many human rights claims are of overriding public importance because they set important precedents.
10. How else could the government best ensure that the courts can focus on genuine human rights abuses?
When someone brings a human rights claim, and assuming they are of sound mind, they reasonably feel that some or all of their basic human rights have been violated whether they are expressly defined or not within the Human Rights Act 1998, or the European Convention on Human Rights (ECHR). To best ensure that courts can focus on genuine human rights abuses, the Government should cease and desist from continuing with the development of this Bill. By continuing with this Bill, the very scope of positive obligations would be diminished.
Fundamentally, the State cannot absolve itself of its positive and negative obligations by doing nothing. If the State indeed does nothing, and the rights of individuals are infringed or abused, then the State is clearly responsible; it has a responsibility to uphold everyone’s basic human rights. However, the Bill intends to absolve the State of its positive obligations to uphold human rights by passing the buck to individuals. The Bill places more emphasis on ‘personal responsibility’. Although it is important that everyone has responsibility for their own public conduct, the State must take responsibility for human rights abuses / atrocities that take place on its own soil.
Effectively, the proposed Bill will cause the greatest suffering towards those who are the most vulnerable in society and will ‘sympathise’ with abuse in public and private institutions, affecting children and adults in care homes, psychiatric institutions, hospitals and so on. If cases such as these are not allowed to be brought to court, then there is a real risk of human rights atrocities being perpetrated against the most vulnerable in society. Risk is also created as a result of the lack of accountability and culpability such legislative proposals will cause.
The Human Rights Act 1998 gives effective authority to the European Court of Human Rights to be a check and a balance on UK law. A recent case confirming the positive aspects of having such a check and a balance is VCL and AN v United Kingdom (2021), in which the European Court of Human Rights confirmed that the Court of Appeal’s decision in R v AN (2012) was wrongly decided. Also, in France, the Cour de Cassation refused to allow a French national and her children to return to France from North East Syria after they were trafficked to the Middle East to join ISIS in 2015. Now, this case is before the Grand Chamber of the European Court of Human Rights in Strasbourg; please see H.F. and M.F. v France.
11. How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities from being impacted by costly human rights litigation? Please provide reasons.
You have mentioned that the Bill of Rights will ‘provide more certainty for ‘public authorities to discharge the functions Parliament has given them, without the fear that this will expose them to costly human rights litigation’. I agree that the current formulation of the Human Rights Act has the benefit of flexibility, which has allowed the Act’s application to evolve in line with changes in how public functions have been delivered.
You have also referred to ‘legal uncertainty’ created as a result of the Human Rights Act 1998, namely, sections 2 and 3, and the wider development in general of ‘positive obligations’ on Government authorities, and has also incrementally expanded interpretation of the scope of certain rights and judicial amendment of legislation.
You have referred to the case of Rabone and another v Pennine Care NHS Trust [2012] UKSC 2, where the Supreme Court of the United Kingdom held that the State had breached the positive obligation to protect life under Article 2. The Supreme Court noted that the Strasbourg case law in this area is still in its early days of development, and its boundaries were still being explored. Going further than the Strasbourg courts, the Supreme Court expanded the ‘operational duty’ under Article 2 to voluntary patients as well as detained patients, and placed an obligation on the hospital that did not exist under previous case law. Therefore, it is evident that the legislature’s intervention to limit such creative judicial expansion of, I note, our own Supreme Court’s decision-making is ill-advised and morally unsound. Yes, there may be some uncertainty as to the scope and breadth of Article 2 ECHR, but this uncertainty has been for the most part resolved by the Supreme Court and can be determined further by future litigation.
You have also referred to the case of Director of Public Prosecutions v Ziegler and others [2021] UKSC 23. The protestors in this case, the Supreme Court of the United Kingdom stated, were not in breach of the law for wilfully obstructing a highway because in light of Article 10 and 11 of the Convention they have a ‘lawful excuse’ by way of protest to do so. There is a long established right to protest in Britain, and sometimes this can be the only way to effect policy change. Of course, it is uncomfortable and unwelcome as a State to find out that your own citizens are strongly opposed to your policies, but I strongly believe that protests can genuinely effect Government policy change. For example, the poll tax riots on or around March 1990 are a genuine example. Furthermore, if the Government seeks to intervene to hinder the right to protest, as is currently proposed in the Police, Crime, Sentencing and Courts Bill 2021 (which I note is opposed by many), then policy change may not be effected so easily and this hinders various articles under the ECHR such as Articles 10 and 11. When such curbs on protests are put into place, sickening and vile atrocities are more likely to occur. Relevant examples include the brutality of the Covid lockdowns in 2020-2021, people paying their respects being cruelly abused by the Police at Sarah Everard’s vigil, and the Peterloo massacre which took place at St Peter’s Field, Manchester, Lancashire, England, on Monday 16 August 1819.
Therefore, the Human Rights Bill must not seek to hinder the development of human rights law either in Strasbourg, or domestically in the judiciary. The common law is meant to develop by precedent, and the legislature must cease and desist from slamming the brakes on such organic development of the law.
12. We would welcome your views on the options for section 3.
Option 1: Repeal section 3 and do not replace it.
Option 2: Repeal section 3 and replace it with a provision that where there is ambiguity, legislation should be construed compatible with the rights in the Bill of Rights, but only where such interpretation can be done in a manner that is consistent with the wording and overriding purpose of the legislation.
We would welcome comments on the above options, and the illustrative clauses in Appendix 2.
Section 3 of the Human Rights Act 1998 should not be repealed. It is important that, ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. The Government seems to consider that the HRA is shifting power away from Parliament and giving it to the courts. However, this is incorrect.
The HRA was drafted with Parliament’s sovereignty in mind, and notably only parliament can make or change laws. The HRA currently adequately protects the human rights of people in Britain, and carefully upholds the UK’s democratic traditions. Therefore, this consultation’s proposal is unnecessary and requires reconsideration.
13. How could Parliament’s role in engaging with, and scrutinising, section 3 judgments be enhanced?
At paragraph [42] of The Independent Human Rights Act Review 2021, it is suggested that in terms of the HRA, it ‘…ties the United Kingdom to a dynamic system of law whose development is the task of a court standing entirely outside its own political institutions…The Convention and the case law of the Strasbourg court create a body of law which cannot be repealed or amended by Parliament short of withdrawing from the treaty altogether.’
Recommended reform options, at page 189 include ‘Amend section 3 to clarify the order of priority of interpretation, coupled with increased transparency in the use of section 3, an enhanced role for Parliament in particular through the JCHR, and the introduction of a discretion to make ex gratia payments where a declaration of incompatibility is made. Otherwise no changes to sections 3 and 4.’
Although section 3 could be reformed, the HRA does not remove power from Parliament. The HRA ensures that Parliament remains sovereign and it can create, change or remove laws as it sees fit. Parliament also currently has a body called the JCHR (Human Rights Joint Committee) who are tasked with analysing new laws to check whether they respect human rights. This Committee is also responsible for looking at new human rights legal cases. If the Bill of Rights is needed, why not implement some scope for ensuring that the JCHR is able to continue its important work.
14. Should a new database be created to record all judgments that rely on section 3 in interpreting legislation?
I agree with The Independent Human Rights Act Review 2021 (see link in question 13 above), that:
[79] There are a number of accessible databases of both UK judgments and those of the ECtHR. Both types of judgement can be found on BAILLI109. The latter can also be found on HUDOC110, the ECtHR’s own database. The former does not provide a function to highlight key issues or leading judgments. The latter, while it provides a function to identify key cases, does not do so in an easily accessible manner. We also note the recent decision to establish an accessible database of Court judgments, to be managed by The National Archives111. Consideration could be given by BAILII and/or The National Archives to include, as part of their judgement database, a section providing easy access to key UK and ECtHR decisions on Convention rights.
[80] There is likely to be a potential benefit, to the public, the legal profession, the UK Judiciary and that of the ECtHR, if a database were able to provide ready access to leading Court judgments on human rights questions. From the ECtHR’s perspective, such a database of UK Court judgments could enhance its ability to consider UK judgments. From the UK Judiciaries’ perspective, it could enhance their ability to access and consider ECtHR case law.
It is however, a shame that such a creation of the database was not thus recommended by the panel, and it was explained that:
[81] That said, both the ECtHR and UK Judiciaries, together with the legal profession, already have access to professional, subscription databases where they can readily access such material. This reduces considerably the potential benefit from this option, albeit there might be some benefit to interested members of the public. We are not therefore persuaded to recommend this option.
Members of the public do not have access to such subscription databases, and a free website mirroring Bailii or Westlaw would be most helpful.
15. Should the courts be able to make a declaration of incompatibility for all secondary legislation, as they can currently do for Acts of Parliament?
If the courts were able to make a declaration of incompatibility for all secondary legislation, then people’s protections and access to justice in the event of a breach would be hampered. Currently, courts have the power to disapply secondary legislation and this power must remain intact. The proposal could lead to less protection than is currently available and is wholly unnecessary.
16. Should the proposals for suspended and prospective quashing orders put forward in the Judicial Review and Courts Bill be extended to all proceedings under the Bill of Rights where secondary legislation is found to be incompatible with the Convention rights? Please provide reasons.
Essentially, this proposal would limit people’s access to justice and reduce the protections currently available under the HRA. Quashing orders do not make the law, but ultimately ensure that the law is followed. If quashing orders are limited, then people may not be able to hold public bodies to account so easily. Therefore, this proposal is unnecessary and could result in significant human rights abuses.
17. Should the Bill of Rights contain a remedial order power? In particular, should it be:
1. similar to that contained in section 10 of the Human Rights Act;
2. similar to that in the Human Rights Act, but not able to be used to amend the Bill of Rights itself;
3. limited only to remedial orders made under the ‘urgent’ procedure; or
4. abolished altogether?
Please provide reasons.
The HRA currently allows for remedial orders and this is a clear and effective system which allows Parliament to investigate whether laws that are incompatible with human rights need to be changed. The proposal is unnecessary and harmful. Throughout the entirety of the HRA’s life, there have been less than 50 declarations of incompatibility. Parliament resolutions can resolve such difficult legislation and the current system is working well. There is no need for this proposal.
18. We would welcome your views on how you consider section 19 is operating in practice, and whether there is a case for change.
Section 19 of the HRA ‘Statements of compatibility. (1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill— (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill. (2) The statement must be in writing and be published in such a manner as the Minister makes it considered appropriate.’
I agree with the Independent Human Rights Review Panel, which states that – with regards to section 19 – if there is a way to increase parliamentary scrutiny then that is a good thing. However, explanatory memoranda are already produced and there is a risk of potential conflation of the intentions of parliament and of ministers (see page 522).
At paragraph [29], section 19’s purpose is defined as:
‘A further demonstration of our determination to improve compliance with Convention rights. It places a requirement on a Minister to publish a statement in relation to any Bill that he or she introduces. The statement will either be that the provisions of the legislation are compatible with Convention rights or that he or she cannot make such a statement, but the Government nevertheless wishes to proceed with the Bill… In my judgment, it will greatly assist Parliament’s consideration of Bills highlighting the potential implications of human rights.’
It was intended that section 19 would improve Government and parliamentary scrutiny of legislation. Government ministers were expected to give their reasons as to whether they had or had not made a section 19 statement. It was to provide the basis for a presumption and to ensure that post-HRA legislation was intended, and ought therefore, to be capable of being interpreted compatibly with Convention rights.
See:
[31] Section 19 had a further role, one more specifically linked to sections 3 and 4 of the HRA. The expectation, where section 3 was concerned, was that the Courts would approach legislation enacted after the HRA came into force in respect of which a Government minister had issued a section 19 statement of compatibility, on the basis that Parliament had sought to ensure it was compatible with Convention rights. In other words, where Parliament had considered legislation following the HRA’s enactment, there was to be an assumption by the Courts that it was compatible with Convention rights.
[32] In so far as section 4 of the HRA was concerned, section 19 was intended to play a different role. Particularly, it was anticipated, albeit not mandated, that where a Government minister had issued a section 19 statement of compatibility in respect of legislation that the UK Courts had later held to be incompatible with Convention rights, remedial action would be taken by the Government.
[33] Section 19’s aims can be summarised as follows.
- Enhance Government and parliamentary scrutiny of the compatibility of proposed legislation with Convention rights;
- Enable UK courts to assume that legislation was intended to be compatible with Convention rights when interpreting it consistently with section 3 of the HRA;
- Provide a prompt to Government ministers to take remedial action where, following the making of a section 19 statement of compatibility, UK courts had held legislation to be incompatible with Convention rights.
The Government may be intending to remove the requirement of making a human rights compatibility statement about potential new laws they impose and this is wholly unacceptable. The HRA is working perfectly well to ensure that all new laws created reflect such rights as set out in the HRA. Section 19 statements ensure transparency, good governance and ensures that the Government ‘reins itself in’ and considers potential human rights implications of their legislative proposals.
19. How can the Bill of Rights best reflect the different interests, histories and legal traditions of all parts of the UK, while retaining the key principles that underlie a Bill of Rights for the whole UK?
The Independent Human Rights Review (see question 13 above for the link), considers that:
[136] One of the aims underpinning the HRA’s introduction was that it should spur the development of a distinctive domestic rights jurisprudence, with the benefits that flow from, one properly based in the UK’s rich cultural, political and legal traditions. Such a development is envisaged by the Convention itself which does not purport to ‘construct a uniform code’153 for the 47 countries that are parties to it. The challenge is to build on the notable developments of this nature154, which have taken place in recent years.
[137] Finally, it remains of real concern that the approach taken to section 2 may have contributed to a sense of antipathy to and lack of ownership of human rights law within the UK. Notwithstanding the strong support for the HRA and section 2, a theme emerging from the evidence, and particularly from the Roundtables and Roadshows, was a sense that there was a lack of public ownership of the HRA.
[138] Furthermore, a noted antipathy towards it from some parts of the media, public and politicians was commented upon. By giving priority to Convention rights over domestic statute and the common law, and primacy of interpretation of the Convention rights in the HRA, it is easy to portray Convention rights specifically, and human rights law generally, as something foreign to the UK’s legal tradition and imposed from outside the UK.
Hence, keeping the HRA as it already stands is imperative. It provides a clear and effective framework for protecting human rights in the UK and the devolved nations. It further reflects the different legal systems of the UK. The Government has also not considered how the devolved nations will react to the Bill of Rights and whether legislative consent will need to be sought from the devolved nations in this regard.
20. Should the existing definition of public authorities be maintained, or can more certainty be provided as to which bodies or functions are covered? Please provide reasons.
You have stated in the Consultation that the current approach is ‘broadly right’ in relation to what constitutes a public authority. However, you then proceed to explain that a different approach is needed, as there was a case in which the Ministry of Justice did not take sufficient steps to ensure that a private company, which provided accommodation to people seeking asylum under a Government contract, did not breach people’s human rights. The Government wants to see if it can change the definition of a ‘public authority’ in an attempt to make it clearer and more explicit.
However, it is likely that this is not necessary, and the current law is sufficient. Section 6 of the HRA places a duty on all public authorities to act in a way that is compatible with the rights in the Act. Public authorities, plainly, provide public functions. IHRAR did not mention any problems with Section 6 of the HRA as it currently stands. The references to this section in the IHRAR report are about the duty on public bodies as an important part of the framework for protecting rights under the HRA.
Although it looks, on the face of it, like the Government is suggesting some new ‘positive’ proposal, rather than reducing our protections and their responsibilities to us, this is not the case. The consultation itself states that the current approach is ‘broadly right’ and ultimately there is little substance in the proposal. Therefore, any attempt to change the definition of a public authority must be rejected outright.
21. The government would like to give public authorities greater confidence to perform their functions within the bounds of human rights law. Which of the following replacement options for section 6(2) would you prefer? Please explain your reasons.
Option 1: provide that wherever public authorities are clearly giving effect to primary legislation, then they are not acting unlawfully; or
Option 2: retain the current exception, but in a way which mirrors the changes to how legislation can be interpreted discussed above for section 3
As explained above, section 6 of the HRA places a legal duty upon all public authorities to act in a way that is compatible with the rights as set out in the Act. In relation to public authorities having a legal duty to uphold our rights, the Government seeks to limit this as much as possible and has excused itself by saying that ‘confusion’ is created for public authorities, especially when they are carrying out laws enacted by Parliament. Ultimately, the Government is annoyed that sometimes the decisions of public authorities cannot match the will of Parliament because they may need to make decisions that are contrary to Parliament’s decisions in order to uphold basic human rights. Ultimately, the Human Rights Act is working as it should in this regard and no changes are necessary.
22. Given the above, we would welcome your views on the most appropriate approach for addressing the issue of extraterritorial jurisdiction, including the tension between the law of armed conflict and the Convention in relation to extraterritorial armed conflict.
Extraterritorial jurisdiction is a complicated issue and the applicability of law outside of a country’s borders is a controversial issue. The Government is clearly concerned about this and how ECHR judgments are potentially applied when the UK is engaged in conflict overseas.
According to IHRAR, no change is necessary in relation to extraterritorial application. Any clarification could be made through the development of case law and “any reform that limited the HRA’s extraterritorial jurisdiction would result in the creation of an unsatisfactory gap” in the protection of human rights. However, IHRAR recommended that a national conversation be held in the UK to decide what further measures are needed, if any, in relation to the extraterritorial application of law.
Importantly, no change is necessary in the application of the HRA or the ECHR when Governmental powers are being exercised abroad, especially during times of armed conflict.
23. To what extent has the application of the principle of ‘proportionality’ given rise to problems, in practice, under the Human Rights Act?
We wish to provide more guidance to the courts on how to balance qualified and limited rights. Which of the below options do you believe is the best way to achieve this? Please provide reasons.
Option 1: Clarify that when the courts are deciding whether an interference with a qualified right is ‘necessary’ in a ‘democratic society’, legislation enacted by Parliament should be given great weight, in determining what is deemed to be ‘necessary’.
Option 2: Require the courts to give great weight to the expressed view of Parliament, when assessing the public interest, for the purposes of determining the compatibility of legislation, or actions by public authorities in discharging their statutory or other duties, with any right.
We would welcome your views on the above options, and the draft clauses after paragraph 10 of Appendix 2.
According to the IHRAR report, there are no concerns with proportionality. In fact, proportionality is vital to the protection of human rights. Decisions must protect the community and through the HRA, it seems to be doing this effectively. Law-makers must ensure that they choose a solution that is as least restrictive as possible when they are considering the options to restrict someone’s non-absolute rights. Currently, the facts of each situation are investigated instead of adopting an unfair blanket ban approach and the principle of proportionality prevents peoples’ human rights from being restricted too heavily. The courts would be severely hampered if the Government continues to seek the ability to restrict their decision-making capabilities to make a ‘balanced judgement’ by creating specific rules as to what proportionality would entail.
24. How can we make sure deportations that are in the public interest are not frustrated by human rights claims? Which of the options, below, do you believe would be the best way to achieve this objective? Please provide reasons.
Option 1: Provide that certain rights in the Bill of Rights cannot prevent the deportation of a certain category of individual, for example, based on a certain threshold such as length of imprisonment.
Option 2: Provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights.
Option 3: Provide that a deportation decision cannot be overturned, unless it is obviously flawed, preventing the courts from substituting their view for that of the Secretary of State.
The Government is adamant that human rights law can be abused by those attempting to prevent their own deportation. However, immigration law has, for a long time, permitted the Government to deport non-citizens on the basis of their conduct. Where someone has been convicted of certain serious crimes, the UK Borders Act 2007, s 32 allows for their automatic deportation, save for when their rights would be breached under the HRA.
Currently there are no concerns in relation to deportation, and the IHRAR has made this clear. The Government’s suggestions appear to conclude that the scope of human rights in relation to deportation must be limited, which goes against the very point of having human rights in the first place.
Neither option, therefore, should be picked. There is no widespread abuse of human rights cases to frustrate any deportation process. It must further be noted that human rights are universal. It should not be the case that those able to rely on human rights are ‘cherry-picked’ on the basis of their lack of British citizenship.
25. While respecting our international obligations, how could we more effectively address, at both the domestic and international levels, the impediments arising from the Convention and the Human Rights Act to tackling the challenges posed by illegal and irregular migration?
The absolute right of Right to Life is enshrined by Article 2 of the ECHR. This is the key right that engages with illegal and irregular migration across the English Channel. Public bodies have a duty to protect, uphold and fulfil human rights and Article 2 for all people in the UK, and within the UK’s territorial waters.
The Government have shown their contempt for respecting human rights through their Nationality and Borders Bill, which is currently going through Parliament. The House of Lords have rejected many of the Government’s proposals, which are bent on removing as much as possible the protections of people’s human rights.
If the Government seeks to change human rights law to limit duties to protect the right to life towards refugees and migrants, this would seriously undermine the right to life for all people in the UK.
26. We think the Bill of Rights could set out a number of factors in considering when damages are awarded and how much. These include: a. the impact on the provision of public services; b. the extent to which the statutory obligation had been discharged; c. the extent of the breach; and d. where the public authority was trying to give effect to the express provisions, or clear purpose, of legislation. Which of the above considerations do you think should be included? Please provide reasons.
The Government merely wants to introduce these provisions to prevent, as much as possible, the consequences of a court finding that a public authority (including a decision that the Government has breached human rights). The Government and public bodies are strongly incentivised to uphold people’s human rights through the HRA. This is a positive practice and is very effective in encouraging public bodies to positively uphold human rights.
It is not the Government’s place to decide what criteria courts should use when they make decisions about remedies awarded when courts find that public authorities including the Government have breached human rights. Our independent courts should have the power to make their own decisions in this regard, taking into account the full facts of each case.
27. We believe that the Bill of Rights should include some mention of responsibilities and/or the conduct of claimants, and that the remedies system could be used in this respect. Which of the following options would best achieve this? Please provide reasons.
Option 1: Provide that damages may be reduced or removed on account of the applicant’s conduct specifically confined to the circumstances of the claim; or
Option 2: Provide that damages may be reduced in part or in full on account of the applicant’s wider conduct, and whether there should be any limits, temporal or otherwise, as to the conduct to be considered.
The Government’s proposals are ill-considered and would not remain universal. Such reform would create a new class of “undeserving claimants” and such claimants would be prevented from the outset from accessing remedies if their human rights have been breached. Human rights must not be treated as ‘rewards’ and should not be ‘behaviour based’. The protections are weakened under the new Bill of Rights if it seeks to impose a class of so-called undeserving claimants and the rights of all of us would be limited and drastically reduced.
The Government is clearly concerned about responsibilities. Hence, it should strengthen its efforts of not reducing the responsibilities of the Government and public bodies to uphold human rights, but increase them.
28. We would welcome comments on the options, above, for responding to adverse Strasbourg judgments, in light of the illustrative draft clause at paragraph 11 of Appendix 2.
It is understandable that the Government intends for Parliament to have a stronger role in responding to the decisions of the ECtHR. The Government wants to ensure that Parliament is sovereign in respect of whether or not they decide to adhere to the ECtHR. Conversely, the IHRAR considers that an ‘organic’ approach to the development of ECtHR case law is needed and the UK should adopt such an approach.
Such reforms are not necessary. Parliament already has structures in place to deal with ECtHR judgments and can respond to them effectively. The HRA does not compel the Government or Parliament to take a certain approach if a judgment is made against the UK in the ECtHR.
29. We would like your views and any evidence or data you might hold on any potential impacts that could arise as a result of the proposed Bill of Rights. In particular: a. What do you consider to be the likely costs and benefits of the proposed Bill of Rights? Please give reasons and supply evidence as appropriate; b. What do you consider to be the equalities impacts on individuals with particular protected characteristics of each of the proposed options for reform? Please give reasons and supply evidence as appropriate; and c. How might any negative impacts be mitigated? Please give reasons and supply evidence as appropriate.
The Human Rights Act as it exists is working well, and safeguards everyone in the UK. There is ultimately no need for reform, and such reforms proposed seek to limit human rights to a certain extent. Such limits are exposed by the proposed ‘proportionality’ rules, reform of the definition of a ‘public body’ and a general proposal for persons in the United Kingdom to take more personal responsibility for their human rights. Everyone, no matter who they are, must be treated equally with dignity and respect. If there is going to be a Bill of Rights, it must reflect these values.
Human rights are firmly established in our domestic law, and this is reflected by the relatively few cases brought against the United Kingdom in the ECtHR. The Government seeks to unilaterally determine who deserves rights and who does not. Thus, the rights of some people in society (potentially including refugees) will be restricted, which is anathema to public policy. Changes to the way public bodies are defined will make it much harder to bring claims against them and hold them to account when things inevitably go wrong.
We live in a democracy, and thus we must be able to effectively hold public authorities, our Government and decision-makers to account. The only body that will benefit from these proposals will be the UK Government, as more power will be leveraged on them. No case exists to change the operation of the Human Rights Act by creating a new Bill of Rights.
This article is intended for general information only, applies to the law at the time of publication, is not specific to the facts of your case and is not intended to be a replacement for legal advice. It is recommended that specific professional advice is sought before relying on any of the information given. © Jonathan Lea Limited.
