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Reform of the Human Rights Act 1998: Mishcon de Reya responds to the Government's consultation

Posted on 9 March 2022

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We have recently submitted a detailed response to the Government's consultation to reform the Human Rights Act 1998.

The Government's consultation was commenced following the conclusion of The Independent Human Rights Act Review ("the IHRAR"), chaired by Sir Peter Gross. This Firm previously submitted a response to IHRAR and was cited in its final report. The IHRAR Panel held multiple roundtables, roadshows and online meetings with interested parties and received over 150 responses to its call for evidence. Its final report was over 500 pages and proposed relatively limited reforms to the HRA. In contrast, the Government's present consultation – launched immediately following the publication of the IHRAR report – contains sweeping proposals which intend to repeal the HRA in its entirety and replace it with a new Bill of Rights. In this regard, we note the apparent disappointment, expressed by Sir Peter Gross to the Justice Committee, that the Government has not explained its "reaction to the width and depth of the views which informed [the panel's] deliberations" where its position differs to that set out in the IHRAR Report.

In this Firm's response to the Consultation, we conclude that the case for reforming the HRA has not been made out by the Government, either philosophically or factually. In Part One of our response, we address each of the key premises underlying the Government's "case" for reform, and establish that there has not been judicial overreach into policy decisions by virtue of the HRA, Parliamentary sovereignty is protected under the HRA, and courts do – and should – have regard to the wider public interest when undertaking careful balancing exercises between conflicting rights. In Part Two of our response, we address the questions raised in the Consultation, and conclude that the Government's proposals are unnecessary, likely to create uncertainty in the legal human rights framework, and will lead to more cases being brought in the Strasbourg court against the UK where domestic courts no longer provide redress.

At Annex 2, this Firm sets out a table summarising the key cases on which the Government has based its proposals, together with an analysis of the facts of those cases. The table – together with our substantive response to the Consultation – demonstrates the unsound basis of the Government's case for replacing the HRA with a Bill of Rights. This Firm does not believe that the Government has sufficient evidence to support the significant reforms it is proposing, or to suggest that the current system is materially flawed. The Government's selective citation of case law and quotations throughout the Consultation belies the true state of affairs.

Finally, Annex 3 includes a detailed methodology for the data analysis included in the response.  Working with our Data Science team, we have been able to demonstrate that the Government's assertion that the number of human rights cases has been increasing over time is incorrect. The number of cases has, in fact, remained relatively stable.

The impact of the Government's proposals will be felt more widely than by victims of human rights abuses alone. This Firm recently part-funded research by LegalUK and Oxera which revealed the true value of English law, extending far beyond benefits to the legal sector to represent hundreds of trillions of pounds of annual business activity in the UK and abroad. One of the key themes arising from the research was that the predictability of outcomes in English law provides a competitive advantage over other legal systems. This Firm is concerned that the Government's proposals – by introducing uncertainty into human rights claims and reducing access to justice – are likely seriously to damage the value of English law and the UK's international standing as a guardian of human rights.

Katy Colton, Head of the Politics and Law Group, commented: "The response by Mishcon de Reya to the Government makes clear that the HRA plays a vital function in protecting the most vulnerable members of our society. Rather than introducing a new Bill of Rights, this Firm supports the conclusion of the IHRAR Panel that the Government should announce an effective programme of civil and constitutional education, to address the public perception of the HRA".

Alexandra Agnew, Associate in the Politics and Law Group, stated: "The current crisis in Ukraine has thrown into sharp relief the critical importance of protecting the rule of law and liberal democracy.  Recent moves by the Government to row back from the effective protections currently enshrined in English law are concerning and have the potential significantly to damage our international reputation and, consequently, the attraction of the UK for business investment.".

The Consultation response can be accessed here: Consultation response.

The Firm's previous response to the IHRAR Panel can be accessed here: IHRAR’s Call for Evidence: Mishcon de Reya response.

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