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Human rights: Critics claim UK approach to legal reform takes ‘sledgehammer’ to ‘cornerstone of justice’

Polly BotsfordMonday 25 April 2022

The UK government’s consultation on a ‘modern bill of rights’, to reform the country’s Human Rights Act 1998 (HRA), ended in mid-April. According to the Secretary of State for Justice, Dominic Raab, the government’s plans will ‘prevent abuses of the system and add a healthy dose of common sense’.

Reactions to the direction of travel set out in the Ministry of Justice’s consultation paper have been damning. The President of the Law Society of England and Wales, I. Stephanie Boyce, called the consultation proposals ‘a sledgehammer to a cornerstone of British justice’. The civil liberties organisation, Liberty, described them as ‘a sensationalist and slanted understanding of the operation of human rights in the UK.’

The proposed reforms are not the first attempt to revamp the Human Rights Act. For example, in 2007, a government green paper, the Governance of Britain, re-imagined the HRA as a new ‘Bill of Rights and Duties’.

The arguments for reform are, according to the current UK government, firstly that the HRA has brought with it a rights culture that has ‘displaced due focus on personal responsibility and the public interest’.

Secondly, those who are delivering frontline public services are hindered from doing their jobs due to legal uncertainty and risk aversion for fear of human rights challenges in procedures and decision-making, the government says.

Finally, the government claims that the HRA creates a democratic deficit by transferring policy decisions away from parliament in favour of the courts.

An expert panel, commissioned by the government, concluded that there was some scope for updating the HRA. The Independent Human Rights Act Review (the IHRAR), which published its report in late 2021, was broadly positive about the HRA but identified areas where changes would be beneficial. It stated that ‘though the HRA has been a success, there is clear room for a coherent package of reforms.’

But campaigning organisations and experts believe that there are no real grounds for reform. The parliamentary Joint Committee on Human Rights (JCHR) launched its own inquiry in 2021 and its report found that there was ‘no case for changing the HRA’.

Governments get frustrated that their legislative agenda comes into conflict with human rights law. But the whole point is that human rights protect citizens from the state

Mark Stephens CBE
Co-Chair, IBA’s Human Rights Institute

Richard Clayton QC of Exchequer Chambers, London, agrees. He tells Global Insight: ‘There is simply no case for “updating” the HRA and what the Government is suggesting could lead to profound changes in the human rights landscape.’

The proposed reforms have a working title that appears designed to echo the first Bill of Rights of 17th century England, which helped to redistribute power from the crown to parliament. The proposals aim to reframe the HRA in many different ways, for instance to make the legislation more focused on British common law and to put distance between the UK courts and the European Court of Human Rights (ECtHR).

The government has proposed a new permissions stage where a claimant would have to show they have suffered ‘significant disadvantage’ before a human rights claim can be heard in court. The government also aims to bolster free expression and protect trial by jury.

Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute, says that the strength of feeling against changes stems from the poor logic of the proposed reforms. ‘Governments get frustrated that their legislative agenda comes into conflict with human rights law,’ he says. ‘But the whole point is that human rights protect citizens from the state. Governments need to make legislation compliant but instead they shift the blame onto human rights laws and onto activist lawyers whereas it’s, in fact, failings in their legislation.’

The consultation appears to be out of sync with the IHRAR’s work, which may be a contributing factor towards the generally negative response the proposals have received. Data cited in the consultation document doesn’t appear to have been provided as part of the work of the IHRAR, while evidence gathered over nine months by the IHRAR seems not to have held much sway in the government’s consultation.

For instance, the government aims to rewrite section 3 of the HRA, which sets out how the courts must read domestic legislation in the light of its compatibility with the HRA on the grounds that it leads to courts reaching an interpretation of domestic legislation that differs from parliament’s intentions. But the IHRAR specifically recommended ‘no change’ on this point, apart from some minor clarifications, and argued that ‘there is little evidence of a problem.’

Charlie Whelton, Policy and Campaigns Officer at NGO Liberty, says ‘[the consultation] ignores the evidence from IHRAR, the JCHR and elsewhere of the positive benefits that the HRA has had and presents a ripped-from-the-tabloids procession of unpopular cases to create a narrative that human rights are things that prisoners and migrants use, and so they should be restricted.’

Stephens believes this is also a problem of poor drafting. ‘There is a practical problem with legislation that is politically drawn and rushed through too quickly without proper engagement and effective drafting,’ he says. ‘There are not enough parliamentary [drafters] compared with, say, twenty years ago, who safeguarded legislation. Instead, we get highly political, rushed laws that are full of ambiguities and discretions: the result is, inevitably, judicial review challenges.’

Responding to Global Insight’s request for a response to criticisms of the proposals, the Ministry of Justice said it had no further comment at this time.

Perhaps the government is right to feel frustrated by the HRA because that is exactly what the legislation sets out to do: thwart the power of the executive. Jack Straw MP, who was Home Secretary at the time of the debate over the draft Human Rights Bill back in 1998, said that ‘The power of the Executive will be reduced by the Bill because the state will be made far more accountable for its acts and omissions to its citizens.’

Image credit: bayazed/AdobeStock.com

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