Human Rights Act reform: a modern bill of rights consultation – Law Society response
The Ministry of Justice (MoJ) has held a consultation, seeking views on proposed reforms to the Human Rights Act (HRA).
This followed the Independent Human Rights Act Review, which carefully considered options for reform.
The government’s proposals go further than the review’s recommendations.
The proposals include:
- amending or removing the duties on courts to take account of case law from the European Court of Human Rights and to interpret legislation compatibly with Convention rights
- introducing a permission stage for human rights claims, where claimants must prove they have suffered “significant disadvantage”
- limiting when public authorities are held accountable for human rights violations
- extending the use of declarations of incompatibility to secondary legislation and introducing suspended and prospective quashing orders in human rights claims
- restricting when human rights apply in deportation cases
- changing how rights are balanced against each other, such as freedom of expression and privacy, or against the public interest
- limiting extraterritorial application of human rights.
We do not believe there is a case for the sweeping reforms proposed.
We’re concerned that the proposed reforms do not recognise the significant benefits that have been achieved for British society through the HRA by improving access to justice and the rule of law.
We believe the proposals will:
Damage the rule of law
A significant number of the proposals either reduce government accountability or shield public bodies from it. This undermines a crucial element of the rule of law, preventing people from challenging unlawful uses of power and undermining good governance.
Prevent access to justice
Reducing government accountability undermines the ability to access justice. Several proposals would make it harder to bring human rights claims or reduce the availability of effective remedies.
Remove or reduce rights
It’s alarming that proposals include the removal of rights on a blanket basis from certain categories of individuals. Other proposals reduce protections or lead to an overall lowering of human rights standards.
Lead to more cases being taken to the European Court of Human Rights
This would reducing human rights protections, making it harder to enforce them in domestic courts.
Taking a different approach to rights under the European Convention of Human Rights all make it more likely that people will have to take their case to the European Court of Human Rights.
Doing this is more expensive and takes longer.
The Human Rights Act is built into devolution settlements across Wales, Scotland and Northern Ireland, so changing it has implications for how devolution functions.
The devolved governments have been clear they do not support it being changed and so the reforms are a risk to ongoing good relations.
Damage the UK’s international reputation
The package of reforms risk undermining international confidence in our commitment to human rights.
This damages our global standing and our ability to hold other countries to account for human rights abuses.
It also harms the UK’s attractiveness as a place for the world to do its business, which is dependent on our clear commitment to the rule of law.
Reduce legal certainty
The scale of the reforms means a large number of new standards, definitions and procedures would be introduced.
This will encourage litigation to test the boundaries of these which will unsettle the law, leaving people unsure of what their rights are, and public bodies of what their obligations are.
Increase costs and complexity
Making procedures more complex, creating more litigation and increasing applications to the European Court of Human Rights will increase costs for:
- public bodies
- the court system
Several proposals would be complicated and likely impractical to implement.
We do not think the majority of reforms are needed, so do not support them being taken forward.
The proposals that we support are:
- introducing a database of judgments which rely on an interpretation under section 3 of the Human Rights Act, which will allow greater understanding and scrutiny of the use of section 3
- changing the remedial order process so that it cannot be used to amend the Human Rights Act itself
We also recommend:
- implementing the recommendation of the Independent Human Rights Act Review to develop a programme of civic and constitutional education to improve understanding of:
- the HRA
- its place in our constitution
- the rights and freedoms contained within it
- introducing group actions for human rights claims, allowing a single case to be brought where there are multiple claims on the same issue and with common facts.
- creating a role for the Joint Committee of Human Rights in monitoring and scrutinising judgments which rely on an interpretation of law under section 3 of the Human Rights Act
- considering creating a mechanism for reviewing human rights judgments and evaluating where legislative or policy changes are required
- provide additional training to support public bodies to understand and apply their obligations under the Human Rights Act.
- create a system of independent judicial oversight of detention decisions of suspected insurgents abroad
The main consultation closed on 8 March 2022.
The government published its response to the consultation in June 2022.
It acknowledged that the majority of people who responded to the consultation did not support the reforms it proposed. Of the 12,000 responses received, 80–90% of these were opposed to each of the proposals.
Nevertheless, the government has introduced the Bill of Rights Bill.
The bill repeals and replaces the Human Rights Act 1998, and introduces the majority of the proposals put forward in this consultation.