On 14 December 2021, the UK government launched a consultation document proposing reforms to the Human Rights Act 1998 (HRA) entitled the “Human Rights Act Reform: A Modern Bill of Rights” (consultation). The consultation followed the report of the Independent Human Rights Act Review (IHRAR) panel chaired by Sir Peter Gross. The panel was formed in 2020 to examine the following two major themes: the relationship between the European Court of Human Rights (ECtHR) and domestic courts of the UK, and the effect of HRA on the relationship between the judiciary, the executive, and the legislature in the UK.
The consultation’s objective was to “re-establish a suitable balance between personal accountability, individual rights, and the broader public welfare”. The proposed changes are not the first endeavour to overhaul the HRA. In 2007, the HRA was reformed as a modern “Bill of Rights and Duties” in a government green paper titled the “Governance of Britain”.
While launching the consultation, Justice Secretary Dominic Raab MP stated that the government would “return the position of the parliament as the final decision-maker on legislation affecting the public of the UK, enabling more opportunity to determine how we interpret judgments from the ECtHR in Strasbourg. This will prevent us from gold-plating any rulings made by the Strasburg when they are incorporated into the UK legislation.”
Lawyers and advocacy organisations, on the other hand, have raised concerns about the measures. They claim that the measures will restrict the obligation of public authorities to defend the human rights of people and render it more difficult for individuals to pursue court proceedings for alleged violations.
Further, the UK government has failed to demonstrate that there is an urgent need to reform the HRA. The proposed reforms, if enforced, will have a broad and adverse effect on individuals in the UK who rely on the HRA to defend their rights.
INCONSISTENT WITH THE IHRAR’S WORK
Notably, many of the proposals in the consultation document, as well as the framing of concerns, differ considerably from the examination and suggestions of the IHRAR.
In February 2022, Sir Peter Gross presented evidence to the Justice Committee on Human Rights (JCHR) claiming that he did not regard the consultation document as a reply to the IHRAR’s report. For example, the government wants to revise section 3 of the HRA, which lays out how judges must interpret domestic law in the context of its conformity with the HRA, on the premise that it amounts to judges adopting a different reading of the domestic law than what parliament intended. However, except for some slight explanations, the IHRAR expressly suggested “no reform” on this part, arguing that “there is minimal proof of an issue”. Further, under the proposal to reform section 2 of the HRA, the present duty of the UK courts to take Strasbourg judgments into consideration would be diminished. This would also cause legal ambiguity as the UK courts would be more inclined to depart from the accepted interpretations of the European Convention on Human Rights (ECHR), necessitating prolonged and expensive litigation. Lord Robert Carnwath, a former Supreme Court justice, stated that “proposals to not grant Strasbourg decisions undue emphasis would effectively imply that British Courts might use any international ruling they deemed suitable”. He further added, “the court is provided no direction as to which, if any, it should favour, or on what basis”.
These differences “raised the possibility of creating a larger gap” between the rights implemented in domestic courts and rights implemented at the ECtHR, distinct from the IHRAR’s suggestions.
The consultation overlooks evidence from the JCHR, IHRAR, and other sources of the constructive benefits of the HRA, instead giving a ripped-from-the newspapers display of unpopular incidents to construct a storyline that human rights are something that convicts and migrants utilise and hence should be limited.
THE EFFECT OF FOREIGN POLICY
The consultation document’s view on the UK’s ongoing participation in the ECHR is less clear. The proposal states a general intention for the UK to continue to be a part of the ECHR, only if the Council of Europe would approve the reforms to the human rights legislation. This implies that the Council would have to recognise the reforms, which would, amongst several other things, end the formal relationship between the ECtHR and British courts. Furthermore, it indicates that the Council will be required to recognise that ECtHR rulings would solely be considered advisory. Nevertheless, some of the aims that the governments would seek to accomplish would be incompatible with the ECHR, making long-term participation in the ECHR impossible
The UK’s continued inability to enforce some Strasbourg rulings has already sent an adverse message to other member states that neglect Strasbourg rulings and fail to ensure compliance with article 46 (binding force and execution of judgments) of the ECHR, as the then-Commissioner for Human Rights mentioned in 2015.
Overturning or diminishing the domestic legislation that gives effect to the ECHR as a basic threshold, and thus acting inadequately with its international commitments, will undermine the credibility of the UK government in the Council of Europe and various other international regimes with which it engages, such as the UN Human Rights Council. It diminishes the legitimacy of the Foreign, Commonwealth, and Development Office (FCDO) in calling for other nations to adhere to their human rights duties and condemning them for not doing so. Consequently, the UK is likely to lose its global position on human rights, bilaterally and multilaterally.
“GENUINE” HUMAN RIGHTS ABUSES
The proposals describe the concept of “actual human rights violations” and suggest altering section 8 of the HRA. They seek to introduce the notion of “genuine human rights violations” and “actual injustice,” thus implying that certain human rights abuses and injustices for which individuals seek redress are not “actual” or “genuine.” This threatens those individuals whose human rights have been violated and their ability to vindicate their grievances, obtain an appropriate remedy, or access justice. A system that allows the government to determine whether human rights are “genuine” is vulnerable to discretionary application of the law, harming the rights of the people in the UK. It also raises the possibility that other nations in the Council of Europe or outside it will try to replicate the UK’s practice of labelling some human rights violations as not genuine.
FREEDOM OF EXPRESSION
In its consultation document, the government stated its purpose to provide wider safeguards for freedom of expression in the proposed Bill. Currently, the HRA protects the right to freedom of expression, and courts are expected to evaluate how they reconcile this right with other rights when they contradict. However, giving freedom of expression excessive prominence over other rights would contradict the concept that all rights are vital and equivalent. In practice, it might restrict the right of people to implement their privacy rights and family life, as well as their right to fair proceedings.
A large majority of the proposals either minimise the accountability of government or protect public entities from it. This further diminishes a key component of the rule of law, prohibiting citizens from opposing improper use of power and jeopardising good governance.
PERMISSION STAGES
The proposal introduces a permission stage for human rights cases to proceed to be heard, in which claimants must demonstrate that they have been subjected to a “significant disadvantage” or alternately that the matter is “of overriding public importance”. Besides the present admissibility processes, the proposal will raise additional impediments in achieving justice and redress for human rights violations. There is a chance that, at the direction of the government, the courts may set a high bar for demonstrating a significant disadvantage or overriding public importance. Furthermore, without explicit direction on these tests, they may be applied arbitrarily or inconsistently.
Human rights are the bedrock of our basic rights and the lawful safeguards on which we all depend. They perform a critical role in ensuring the safety of every citizen in the UK. These reforms will render it more difficult for an ordinary citizen to defend their rights and hold government authorities accountable when their rights are violated. The UK government should drop its proposals to repeal the HRA or amend the legislation in such a manner that would prohibit the direct enforcement of the ECHR in the UK. Instead, the government should emphasise executing the suggestions of the IHRAR to create a mechanism of civic and constitutional education to enhance comprehension of the HRA, its position in the constitution, and the various rights and liberties it contains. Further, the government should initiate an investigation into how the several laws affecting the freedom of expression and privacy may be combined, codified, or otherwise defined into unified, autonomous privacy legislation.
Mili Gupta holds an LL.M from Institute of Law, Nirma University.