HRA CONSULTATION

The Panel of the Independent Human Rights Act Review (“IHRAR”) published its first report in December 2021 and found that the Human Rights Act had been a success and whilst it states it did not advocate for a radical change, several recommendations were made including:

  • Developing a programme of civic and constitutional education, focusing on human rights.
  • Amending section 2 of the Human Rights Act to clarify the order of priority in which domestic law and case law from the European Court of Human Rights should be applied by judges.
  • Amending section 3 to clarify that normal methods of interpretation should be used first and, where this does not result in a rights-compatible result, then a rights-compatible interpretation should be applied.
  • Introducing powers to suspend quashing orders or make them prospective only in human rights judgments
  • Addressing extraterritorial application of human rights
  • Amending section 10 to clarify that remedial orders cannot be used to amend the Human Rights Act itself and improve parliamentary scrutiny of remedial orders

A further consultation has been issued that is open until 8 March 2022.

The purpose of this further consultation is to seek views on the government’s proposals “in order to restore a proper balance between the rights of individuals, personal responsibility and the wider public interest.”

Specifically the wide range of topics includes:

  • 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.
  • Extending the use of declarations of incompatibility to secondary legislation and introducing suspended and prospective quashing orders in human rights claims.
  • Introducing a permission stage for human rights claims (i.e. effectively shifting the responsibility to a claimant to demonstrate their claim merits the court’s attention and resources and that they have suffered a significant disadvantage).
  • When public authorities are held accountable for human rights violations.
  • Restricting when human rights apply in deportation cases.
  • How rights are balanced against each other (such as freedom of expression and privacy).
  • Extraterritorial application of human rights

There are a number of concerns with overhauling such an important piece of legislation.

The Law Society welcomed the Review’s acknowledgment that the Human Rights Act is working well overall however they consider that the government’s consultation goes much further than the review’s remit and recommendations. There are concerns that some proposals would be drastic changes and will require careful consideration.  In addition, whilst the government has continued to commit to remaining a party to the European Convention of Human Rights, the Law Society considers the proposals in several areas risk putting the UK on a collision course with the European Court of Human Rights which will lead to more cases going to the European Court and also that unnecessary change could diminish human rights protections in the UK.

The Public Law Project’s (PLP) main focus is on the five proposals that would affect how people can enforce their legal rights and hold public authorities to account being:

  1. Reforming section 2 of the HRA (i.e. the duty to take into account Strasbourg case law) – the PLP notes this proposal poses rule of law concerns (e.g. if the UK is not upholding Convention rights to the standard that Strasbourg has deemed necessary, the UK will be at risk of breaching its international obligations).
  2. Introducing a ‘permission stage’ before a claim can be heard in court.
  3. Reforming section 3 HRA (interpreting legislation to be compatible with the Convention).
  4. Reforming section 4 HRA (declarations of incompatibility of secondary legislation).
  5. Public interest concerns and foreign national offenders.

The proposals in the consultation paper are not final. Upon this further consultation ending in March 2022, a report will be published summarising the responses and an impact assessment will need to be completed which would check how any changes would affect different groups of people.

If the Government does then want to change the Human Rights Act, it has to propose a bill containing the actual wording of the new law. This has to be voted on by both the House of Commons and the House of Lords before it becomes law. As part of the process, it will also be scrutinised by the Joint Committee on Human Rights (12 members appointed from both the House of Commons and the House of Lords to examine matters relating to human rights within the UK as well as scrutinising every Government Bill for its compatibility with human rights; and three formal meetings have already taken place between 26 January 2022 and 9 February 2022).  The Joint Committee will submit written evidence to the inquiry, but their own inquiry will continue to run alongside the Independent Review. 

Responses to the consultation can be submitted via – https://consult.justice.gov.uk/human-rights/human-rights-act-reform/


Written by Suzanne Houghton at BLM (suzanne.houghton@blmlaw.com)

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