The government’s Human Rights Act 1998 (‘HRA’) consultation closes on 8 March. It put forward a range of reform recommendations which will be of interest and concern to civil society, the judiciary, academia and the legal professions. In this blog, I set out some of Public Law Project’s core concerns about both the general approach of the consultation and its specific proposals.
First, the consultation bears little, if any, relation to the recommendations of the Independent Human Rights Act Review (IHRAR) led by Sir Peter Gross (pictured) , a former Court of Appeal judge. Sir Peter has expressly commented to the Justice Committee that the government’s consultation is not a response to his report. For example, while IHRAR recommended modest and clarificatory reforms to section 3, which requires courts to interpret and give effect to legislation as far as possible to be compatible with human rights, the government’s consultation proposes radically weakening this duty and even raises the prospect of repealing it. No compelling reasons, and sometimes no reasons at all, have been given for this divergence.
While no government is bound by an independent commission, the government itself appointed the panel and must have had confidence in its expertise. The panel was also intellectually and politically diverse and held a series of roadshows in the summer of 2021 to encourage full discussion among claimants, government departments, public bodies and academics. We would, therefore, have expected more thoughtful reflection on IHRAR’s proposals.
Second, the consultation consistently justifies reforms with reference to out-of-date trends in the domestic case law. At several important points, this is a consultation about ex issues which no longer exist, rather than current controversies and problems. Two examples are the plans to reform section 3 and the use of Article 8 in deportation cases. For the first, the government cites Ghaidan v Ghodin-Mendoza as evidence of a radical approach to section 3 but, as research by JUSTICE has demonstrated, this case does not reflect routine decisions. On the whole, courts take a cautious and nuanced approach. On Article 8 and deportation, while the government concedes that the Immigration Act 2014 has modified past jurisprudence and produced their preferred legal position (pp.37-38 and p.45), the consultation nevertheless advocates potentially excluding foreign national offenders from Article 8 protection on the basis of merely two tribunal cases (p.38).
Third, in other respects, the consultation only replicates in legislation existing judicial practice. This is largely the case in relation to Q1 and Q2 on how the Supreme Court makes use of Strasbourg cases and other international precedents. However, in mandating the routine approach on the face of primary legislation, the intention appears to be to prevent the courts from exercising a residual discretion to do justice on the facts of rare cases where the routine approach is insufficient. Legislating only for the routine makes no room for the exceptional. This is so in relation to Q12 which seeks to reform section 3. While this may not change routine decisions using section 3, it would prevent the courts making use of a more powerful remedy in rare cases where the routine approach is not adequate.
Fourth, significant points of controversy have been the subject of arbitrary exclusion from the consultation. At para. 269 the consultation rules out without reasons reforming the definition of a ‘public function’ under section 6 to include a greater number of private bodies contracting with public bodies. Given the extent of outsourcing in the contemporary public sector, this exclusion perpetuates a serious gap in protection.
Further, the consultation is almost entirely focused on the application of the HRA in the senior courts and not on its wider use. It does not consider, for example, how local authorities use the HRA in frontline decision-making when making care needs assessments, the HRA’s use by ombuds when deciding whether a public body has acted in a way that is maladministration, or how the police use the HRA before interfering with protected rights. The consultation artificially reduces the HRA only to decisions from the senior courts.
Fifth, we are concerned by the lack of evidence for a number of the consultation’s most radical suggestions. The government spends a significant portion of the consultation, for example, criticising the growth of positive obligations but provides no costings, even ball-park figures, for these supposed costs. Nor is any data provided on which rights these positive obligations protect and what individuals or groups are being most protected. As ever, the government’s real dislike appears to be with one case (Osman v United Kingdom) which is then extrapolated to justify structural change.
The same situation arises in relation to Q29 about data on protected characteristics, where instead of collecting and analysing data that government itself holds, the consultation asks others to provide evidence about the potential discriminatory and equalities impacts of the plans. This consultation will not be cited as the height of evidence-based policy-making.
Sixth, the consultation pays inadequate regard to whether these reforms would be compatible with the UK’s international obligations under the ECHR. The introduction of a new human rights permission stage, for example, could exclude cases being litigated in domestic courts which will ultimately be successful in the Strasbourg Court. This would undermine access to justice for claimants as they could not litigate legitimate cases domestically and will increase long-term costs for public bodies as the process of litigation will be extended for a number of years. At a time of increasing international friction which calls into question the stability of the rules-based international order, it would be especially regrettable if the UK were to implement proposals that put at risk its compliance with international obligations.
Seventh, throughout the consultation, the government refers to a small number of plainly unmeritorious cases to argue that an illegitimate ‘rights culture’ has developed. If a ‘rights culture’ is to mean a public culture whereby individuals have accurate awareness of what their rights are, the limits to those rights, what duties modify them, and an institutional culture whereby public bodies build human rights considerations into their initial decisions, then a ‘rights culture’ is a good thing. In this consultation, the government shows no awareness of how losses in human rights cases can be self-inflicted wounds arising from too many poor quality initial decisions. The government and other public bodies would do better to ‘get it right first time’, rather than focus on a largely fictional ‘rights culture’.
Eighth, the consultation contradicts its own aims. The government wants to increase the protection of Article 10 (freedom of expression) but simultaneously adopts proposals which systemically undermine the principal remedies for enforcing rights. For instance, the consultation criticises the statement in DPP v Connolly that a person could use Article 10 and section 3 to argue that a criminal conviction for offensive expression is disproportionate and, therefore, unlawful. If this protection is removed, this would allow broad statutory language to criminalise expression which is merely offensive to some, which the government claims to be opposed to. Wanting more robust rights protection while undermining the means of enforcing those rights is a contradiction in terms.
Ninth, there is a policy confusion at the heart of the consultation. While sometimes the government suggests repealing the HRA, in practice repeal, reform, revise, update and replace are used interchangeably. At times, the government appears to envisage the HRA existing alongside a Bill of Rights and that the Bill of Rights would provide for additional rights (such a jury trial) and would sometimes merely amend HRA rights. One of the government’s draft clauses, for example, states that: ‘it is not necessary to construe a right or freedom in this Bill of Rights as having the same meaning as a corresponding right or freedom in the European Convention on Human Rights or the Human Rights Act 1998.’
Tenth, the consultation does not consider how its proposals would interact together and the aggregate consequences of these changes. Respondents are asked for comments on discrete and separate proposals in each question but not how each would interact and the broader implications of that interaction. For example, while the proposals to reduce the effectiveness of section 3 could lead to a greater number of section 4 declarations, there is no assessment of the consequences for the parliamentary timetable or the work of government departments, government legal advisers or the select committees. Each proposal is discussed in isolation.
In general, this is a consultation which addresses ex-trends, fails to consider current problems, sidelines the proposals of an expert commission, fails to put forward satisfactory evidence, systemically weakens domestic remedies for human rights protection, undermines access to justice, weakens the accountability of public bodies, fails to put forward a coherent policy on human rights, and puts the UK’s international reputation at risk for failing to comply with international law obligations.
Lee Marsons, Constitutional Reform Research Fellow, Public Law Project
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