On Wednesday last week, Sir Peter Gross' much anticipated report following the Independent Human Rights Act Review (IHRAR) was published (the Report). The Report's recommendations were – as Richard Ekins commented- "entirely predictably" minor and "largely endorsed the status quo."
The same day, the Government launched a consultation: Human Rights Act Reform: a Modern Bill of Rights (the Consultation) seeking feedback on a set of far-reaching proposals that go well beyond the recommendations set out in the Report. Mishcon de Reya will be submitting a detailed response to the Consultation, which closes in March 2022, once we have had a chance to review the Report and Consultation in full. In the meantime, we have set out below a brief summary of the key proposals outlined in the Consultation and corresponding comments from the Report.
According to the Government, the Bill of Rights will:
i) Retain all the substantive rights currently protected under the European Convention on Human Rights (the Convention) and the Human Rights Act 1998 (the HRA). Some rights, such as the right to freedom of expression, will be strengthened and others, such as the right to trial by jury, will be added – reflecting the UK's specific history and traditions.
It is clear from the Report that a commitment to the UK remaining a party to the Convention was not under review, and served as a "fixed premise" on which to base the Report. Similarly, the Government had assured the panel that an examination of the substantive Convention rights, enshrined in the HRA, fell outside the scope of its review.
Amendments to the right to freedom of expression and the right by trial by jury are not considered in the Report. Accordingly, Joshua Rozenberg has commented that the Government appears to be "casting around for ideas" in the Consultation on how best to achieve reform.
ii) Empower domestic courts to apply human rights in the UK context, taking into account our common law traditions and judicial practice amongst other common law nations, not merely the case law of the Strasbourg Court, and strengthen the primacy of the UK Supreme Court in determining the proper interpretation of such rights.
The Report notes that one of its guiding considerations was that each convention state is the primary forum for rights protection, "with the Convention and the ECtHR serving as a longstop." As such, the Report recommends "amending Section 2 HRA to clarify the priority of rights protection by making UK legislation, common law and other case law the first port of call before, if then proceeding to interpret a Convention right, ECtHR case law is taken into account." It notes that the effect of this would be to put UK case law "centre stage".
The Consultation proposes two alternative amendments to Section 2 of the HRA both of which seek to give primacy to UK statute and case law. It is not immediately clear how either proposal would materially change the current approach as both allow Strasbourg decisions to be taken into account. We note, however, that the second proposal grants the UK Supreme Court "ultimate responsibility for interpreting the rights under the Bill of Rights": an impossibility given the UK's alleged commitment to remaining a signatory to the Convention (and therefore the supremacy of the Strasbourg court).
iii) Provide greater clarity regarding the interpretation of certain rights.
Such as the right to respect for private and family life, by guiding the UK courts in interpreting the rights and balancing them with the interests of our society as a whole.
iv) Safeguard the vital protection for the right to life and the absolute prohibition on torture, confirming that people should not be deported or face torture (or inhuman or degrading treatment) abroad, whilst ensuring that other rights in the Act cannot be used to frustrate the deportation of serious criminals and terrorists.
These are not recommendations included in the Report. Indeed, the Report noted that, in general, the courts are guided by "judicial restraint and institutional respect" when reaching their decisions.
The HRA has long-been used as a vehicle for the media and Government to criticise an allegedly "liberal elite" of judges whose decisions are out of touch with society. This proposal appears to seek to address this wrong. The Report is clear that the Government must urgently address public misconceptions surrounding the operation of the HRA. This Firm agrees with the Report's 'strong recommendation' that the Government focus on civic, constitutional education; including on the difficult balances human rights questions often require.
v) Implement a permission stage, similar, but not identical, to those in other branches of law, to ensure that spurious cases do not undermine public confidence in human rights;
and strengthen the courts' discretion when granting remedies for human rights breaches.
vi) Recognise that responsibilities exist alongside rights, and that these should be reflected in the approach to balancing qualified rights and the remedies available for human rights claims.
These are not recommendations included in the Report. Indeed, their inclusion in the Consultation is of concern as it implies that unmeritorious cases (an easy example to imagine the Government using is that of prisoner's voting rights, as referenced in the Consultation) might be refused permission.
This risks leaving the most vulnerable in our society without recourse to remedies or justice.
vii) Make sure that the UK courts are not required to alter or interpret legislation contrary to Parliament’s clearly expressed democratic will.
Pursuant to this objective, the Consultation makes numerous proposals, four of which relate to sections 3 and 4 of the HRA. These sections provide the Court with power to interpret legislation in a way that is compatible with Convention rights "so far as possible"1 and to issue declarations of incompatibility where legislation cannot be interpreted compatibly2.
In short, the Report recommends:
- Amending section 3 to clarify the order of priority of interpretation, i.e., by looking first to domestic statute and the common law before turning to Convention rights. No other changes to sections 3 or 4 are recommended;
- Increased transparency in the use of Section 3 by the creation of a judgments database;
- An enhanced role for Parliament in particular through the Joint Committee on Human Rights (the JCHR);
- The introduction of a discretion to make ex gratia payments where a declaration of incompatibility is made.
Despite the limited nature of these reforms, it is notable that the Consultation requests responses on options including the complete repeal of section 3. This is despite acknowledging "that the IHRAR Panel did not support repeal of section 3" and even confirming that "[t]he government is minded to agree". In fact, the Report's Executive Summary clearly stated that "[t]he reality is that the high-water mark of alarm as to the use of Section 3 hinges on a case now 20 years old.That does not suggest a pattern, still less an enduring pattern, of misuse of the section. Further, relatively settled, restraining, guidance as to the use of Section 3 has stood for at least a decade, so that statutory amendment to narrow the section itself risks uncertainty".
1Section 3 HRA
2Section 4 HRA
viii) 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.
ix) Restrain the ability of the UK courts to use human rights law to impose 'positive obligations' onto our public authorities without proper democratic oversight.
Specifically, the Consultation explores:
- Whether alternative drafting could create a clearer definition of whether a body is public or a function of public nature for "clarity and certainty". The Report makes no such recommendation.
- Whether the current wording of the HRA, specifically Section 6(2)(b), means that the Courts "could still compel the public authority to act in a way that is contrary to the clear will of Parliament" because it only applies where primary legislation cannot be read compatibly and reading legislation compatibly "has caused controversy". To combat this, the Government proposes two options for reform, both of which would essentially mean that a public authority giving effect to clear parliamentary intentions or "the will of Parliament" would serve as a defence for its actions. The Report makes no such recommendation and, although authorities would have to otherwise be acting lawfully and in accordance with public law principles, it seems that this proposal runs the risk of public authorities not being seen to be acting unlawfully even if they violate human rights.
x) Enact a process, centred on Parliament, for assessing the implications of judgments from the Strasbourg Court for the UK, including providing a ‘democratic shield’ preserving Parliamentary sovereignty in the exercise of the legislative function.
The consultation proposes "a formal way for Parliament to play a stronger role in responding to Strasbourg when the Court makes a final adverse ruling against the UK", including:
- A formal requirement for the Government to lay notice of such judgments before Parliament, for the purposes of enabling general Parliamentary consideration.
- The use of ministerial powers to table a motion allowing for a specific debate, which may culminate in a vote where appropriate.
- A legislative provision affirming Parliamentary sovereignty in the exercise of the legislative function, in the context of adverse Strasbourg rulings.
It should be noted that the Report strongly endorsed "the idea Parliament's role could be enhanced" generally. However, the Consultation proposals go far beyond the Report's recommendations and seek to address a perceived ill that was not identified by the IHRAR's expert panel during its review.