Thirteenth Report - Human Rights Act Reform

The proposals in the Government consultation are far reaching, complex and in some instances, views are sought on numerous options for reform.

Given the constitutional importance of the HRA, any eventual legislation reforming or repealing it should be laid as a draft bill to enable pre-legislative scrutiny. (Paragraph 9) Successes of the Human Rights Act and the case for a Bill of Rights

We are disappointed that the Government consultation does not consider how the enforcement of human rights other than by court action could be strengthened.

The Government must look at ways to spread best practice in human rights compliance across the public sector including through training and information programmes.

We support IHRAR’s conclusion that the Government should develop an effective programme of civic and constitutional education.

This should be implemented without delay by the Department of Education, with support from the Ministry of Justice if necessary.

A Bill of Rights should be designed to strengthen, not weaken human rights protection. We see no real case for changing the HRA and little benefit of a rebranding exercise. What might be preferable is more political leadership in championing respect for human rights as a core part of our constitution and values. The Government should consider very carefully whether there is a compelling case for substantial reform, given the upheaval, legal uncertainty and cost that a new Bill of Rights would involve. (Paragraph 26) Section 2 HRA and the Courts

Section 2 HRA plays a crucial role in ensuring that UK judges have regard to matters that are relevant to cases before them, without unduly constraining them in their deliberations. It thus plays a vital role in ensuring that UK reasoning is fully understood by the ECtHR and, therefore, that the UK is accorded the full margin of appreciation available. It also facilitates a very healthy state of judicial dialogue, thus enabling UK judicial reasoning to have a significant impact on ECtHR reasoning. It also means that our courts take the action necessary to ensure that UK cases do not need to end up in Strasbourg. As such, section 2 HRA should be retained and we do not see any need to amend it.

The approach to applying human rights principles needs to be sufficiently flexible to stand the test of time. Human rights law must be able to evolve and adapt to changing circumstances. Disconnecting the application of human rights from the way they have been applied to modern societal circumstances by the relevant 78 Human Rights Act Reform caselaw of the UK Courts and the ECtHR will not benefit people in the UK. There is no place in a modern Bill of Rights for an approach which would give effect to rights as they would have been understood and applied to a 1950s society. Such a premise is not consistent with the UK’s human rights obligations, the nature of fundamental human rights, or the nature of the common law.

If, following engagement with stakeholders and relevant national and local institutions, the UK Government considers that the way that specific rights are applied merits further reflection, it should engage with international partners in discussions about those issues rather than seeking a unilateral approach when it comes to the protection of basic, fundamental human rights.

The Courts in the UK are not, and should not, be constrained in their ability to rely on relevant or useful sources for interpreting human rights obligations, including international sources. To the extent that the options proposed by the Government seem to be encouraging or enabling the courts to look at such sources, they would seem to be unnecessary. To the extent that they seem to be unduly prescriptive in setting out the methodological approaches to be applied by the judiciary, they risk interfering unnecessarily with the judicial function and should be avoided.

More might be done to improve the visibility, accessibility and enforceability of common law fundamental rights. However, any proposal to prioritise consideration of non-Convention rights and consider human rights protected under the HRA as a secondary matter raises a number of practical difficulties, increasing litigation costs and unduly hampering the normal functioning of the courts, and therefore should be avoided.

We do not support either of the proposed options to amend section 2 HRA. There are significant disadvantages and no real advantages in pursuing either option. Both options would appear likely to increase legal uncertainty, with resultant impacts of increasing the cost and time of litigation to resolve such uncertainty. The options increase the likelihood of individuals needing to pursue their claims in Strasbourg. There are also risks that any such amendments would reduce the likelihood that UK judgements can be readily understood in terms of ECtHR analysis and thus risk more adverse ECtHR judgments against the UK.

The doctrine of judicial restraint is very effective. The principle of comity is part of our constitutional culture and it is unlikely to be improved upon by legislating. Legislating for certain areas to fall outside the institutional competence of UK courts could risk unintended consequences, such as impeding access to justice. It could upset the delicate constitutional balance of upholding both parliamentary sovereignty and the rule of law. (Paragraph 60) Compatibility of legislation with human rights: Sections 3 and 19

Section 19 HRA statements of compatibility are a vital tool in understanding the Government’s intention and in assisting Parliament’s scrutiny of Bills for human rights compatibility, as well as in improving transparency. The section 19(1) obligation Human Rights Act Reform 79 should be retained. However, it would improve parliamentary scrutiny if the obligation in section 19(1) were to bite upon introduction, rather than second reading of a Bill.

A revision of section 19 HRA to place the requirement to provide Parliament with an ECHR memorandum on a statutory footing could help to improve the timely provision of these explanations. Such a Memorandum should be provided upon introduction of a Bill, showing the Government’s analysis of the human rights compatibility of the provisions of the Bill. It would also help to have clearer indications within this analysis as to whether the Government is proposing that the UK benefit from a wide margin of appreciation.

The Government should reflect and engage with both Houses of Parliament on how business is managed to enable effective and timely scrutiny of a Bill for human rights compatibility.

We cannot see any significant value in amending section 19(1)(b) to separate out different limbs of this statement. Improved debates on section 19(1)(b) can most usefully be achieved through thorough and well-set out explanations accompanying a section 19(1)(b) statement.

It would not be useful for someone other than the Minister proposing the Bill to make a section 19(1) statement, not least as it is Government and the Minister that have had the benefit of time to undertake the necessary analysis when developing the proposals in the Bill.

We consider that some further thought might be given, in respect of Bills likely to be complex or controversial from a human rights perspective, to seeking an expert opinion on a Bill or draft Bill from either a national or international institution.

Section 19(1) statements and their accompanying explanations should be extended to cover compatibility with all applicable human rights standards, including the common law and international obligations binding the UK that affect human rights and that are relevant to the subject matter of the Bill.

Adequate explanations setting out human rights compatibility analysis should be routinely provided in the Explanatory Memoranda accompanying statutory instruments, alongside the compatibility statements in those Memoranda.

We agree with the IHRAR Report’s conclusion that there is no real evidence to suggest that the UK courts are misusing section 3. By only adopting interpretations that are consistent with the scheme of the legislation, the courts are balancing respect for Parliamentary sovereignty with effective protection for human rights. Repealing section 3 would create uncertainty in the law and substantially weaken the protection of human rights in the UK, both in the courts and through the wider culture of rights. Replacing section 3 with lesser interpretive obligations would have the advantage of greater certainty, but otherwise would be likely to result in similar damage to the protection of human rights in the UK. (Paragraph 98) 80 Human Rights Act Reform

We support the proposal from the IHRAR report that a system be introduced for ex gratia payments where declarations of incompatibility are made, as this would mitigate some of the disadvantages of the declaration for the immediate claimant by providing them with some relief. (Paragraph 99) Remedying incompatibility: Sections 4 and 10

We disagree with the Government’s proposal that the courts should be able to make declarations of incompatibility in respect of secondary legislation (beyond the limited circumstances already provided for in section 4(3) and (4) HRA).

Human rights provide protection against abuse of power by the State and should have a special place within the domestic legal order. The Human Rights Act gives human rights a central place in the UK constitution, whilst nonetheless respecting parliamentary sovereignty. It is important that any reforms do not upset this delicate balance.

We see no reason why suspended and prospective only quashing orders, if introduced, would not apply to judicial reviews concerning human rights. We reiterate our view that the use of these orders should be a matter of judicial discretion and that they must not be used in such a way that would deprive of an effective remedy a victim of a human rights violation.

Remedial Orders can be a useful tool for remedying human rights breaches. As such, the Committee supports the option put forward by the Government of retaining the remedial power to assist in addressing human rights violations.

It could be useful to consider shortening the timeframes for remedial Orders to make the remedial process more expeditious. The first timeframe could perhaps be shortened from 60 days to 50 days for the first report in respect of a proposed draft remedial order; and the second one from 60 days to 30 days. Similarly, that would mean that the overall time for the urgent process could be 80 days. That should still be achievable for this Committee to report, provided resources are allocated appropriately. However, we would note that the most significant delay with remedial orders tends to be waiting for the Government to decide on how to address an incompatibility, which can take many years. It may therefore be more useful to consider how to expedite Governmental decision-making, perhaps through a more formal process of engagement with Parliament in setting a deadline for remedying incompatibilities.

A more structured system should be established to ensure strong collaboration between Government and Parliament in taking timely action to resolve human rights violations. Following a declaration of incompatibility, the responsible Minister should write to the Committee setting out his proposed timetable and method for addressing that incompatibility. The Committee can then consider and agree that timetable with the Government, and can then help to hold both Government and other actors to account in taking timely action to address such violations. (Paragraph 121) Human Rights Act Reform 81

The Committee is concerned that option (d) of removing the remedial power (and probably option (c) of removing the non-urgent procedure) would, without separate measures to enable legislation to be brought swiftly, lead to persistent human rights violations and incompatibilities in the UK being unresolved or taking too long to resolve.

Were either option (c) or (d) to be contemplated, the Government and Parliament need to work together to devise a way of ensuring a timely response to addressing human rights breached in the UK.

A more structured system should be established to ensure strong collaboration between Government and Parliament in taking timely action to resolve human rights violations. Following an adverse ECtHR judgment, the responsible Minister should write to this Committee setting out his proposed timetable and method for resolving a judgment. We can then consider and agree that timetable with the Government, and can help to hold both Government and other actors to account in taking timely action to address such violations.

The inclusion of a reference in statute to a discretionary, seemingly pre-existing power to table a motion is legally unnecessary and would risk opening its use, or lack of use, to debate and possibly challenge before the courts. Whilst we encourage more time to be given to considered debates in Parliament in relation to respect for human rights, we cannot see that this provision is necessary or particularly constructive in that regard. (Paragraph 134) Qualified rights and limited rights and proportionality

We do not agree that the application of the principle of proportionality has given rise to significant problems in practice. It is a valuable tool that is necessary to the understanding and enforcement of qualified rights under the ECHR. The proposed changes to the court’s assessment of proportionality are neither necessary nor beneficial. If too much emphasis is placed on the assessment of proportionality or public interest by the legislature, the court may be inhibited in its ability to carry out the proportionality assessment itself. This risks Parliament and the executive trespassing on the Court’s constitutional function, thereby damaging the separation of powers. It also risks victims being denied their rights without justification. (Paragraph 144) Duties on Public authorities

The relevant factors to be applied in order to determine when functions are of a public nature is now a settled matter set out clearly by the case law. As there is no universally agreed test to determine whether a function is of a public nature, the weighing of relevant factors is a matter best left to be determined by the courts. It is therefore unlikely that seeking to redefine “public authorities” in legislation will assist with clarity. If anything, it may risk introducing more ambiguity, as the courts will have to start again with interpreting a new provision. (Paragraph 151) 82 Human Rights Act Reform

We would not support any redraft or clarification of the definition of public authorities in statute that would seek to narrow the existing definition of the state so as to erode human rights protections. The State should not evade its responsibility to safeguard Convention rights by delegation to private bodies or individuals.

Section 6 HRA respects parliamentary sovereignty by allowing public authorities a defence when they are acting in accordance with legislation that allows for no discretion or where legislation cannot be interpreted compatibly with Convention rights. It is not clear, therefore, why the Government is concerned that this provision requires amendment.

The proposed options would reduce rights protections for individuals. Section 6 HRA places human rights front and centre of public authorities’ approach to providing services, helping to create a human rights culture. Any weakening of this duty is likely to undermine human rights culture within public authorities and would leave individuals with no choice but to pursue their claims in court.

The wider the ambit of the defence in section 6(2), the more likely that there will be an increase in cases where the UK is failing to provide an effective domestic remedy for any breach of Convention rights as required by Article 13 of the Convention.

Positive obligations are a central principle of the Convention. Positive obligations go beyond a duty not to interfere with Convention rights, and require that, in some circumstances, the state must take active steps to protect people’s rights against interference by others. In addition to the express wording in the Convention, the courts have implied various positive obligations in order to secure effective rights protection. If individuals are not able to enforce their rights against public bodies as a result of any narrowing interpretation of positive obligations in domestic courts, individuals will be forced to seek a remedy before the ECtHR. (Paragraph 170) Litigation and remedies

The proposed permission stage is unnecessary and likely to be inconsistent with the UK’s obligations under the Convention.

The precise nature of the proposal in respect of section 8 HRA, requiring prioritisation of claims that are not based on human rights, is unclear, but on any reading it appears that the disadvantages clearly outweigh any advantages it might provide.

The courts already have sufficient flexibility when considering damages in human rights claims, allowing them to take into account the wider context. The Government’s proposal could unbalance the ‘equitable’ exercise of judgment by the courts, and put at risk the UK’s compliance with the right to an effective remedy, and should be rejected.

Human rights by their nature are universal—they are inherent in the human condition. Any efforts to categorise certain groups of people as being less deserving of human rights protection is contrary to the very concept of human rights and should form no part of our laws. (Paragraph 198) Human Rights Act Reform 83

The proposal that a Bill of Rights should provide for damages to be reduced or removed on account of the claimant’s conduct, specifically confined to the circumstances of the claim, is unnecessary, and risks unbalancing the equitable approach to damages currently taken by the courts. To extend that proposal to wider conduct outside the circumstances of the case would constitute an indirect but dangerous attack on the fundamental universality of human rights and should be rejected. (Paragraph 200) Strengthening rights

The jurisprudence of the ECtHR demonstrates that (i) the Court gives precedence to neither Article 8 nor Article 10; (ii) the Court undertakes a balancing exercise between the competing rights which is case-specific, applying general criteria to each case; and (iii) there are restrictions on applicants claiming their Article 8 rights before the Court.

The Government seeks to reorder Convention rights by elevating one above the others. This undermines the philosophy of the Convention which is premised on the fact that all rights contained therein are fundamental (albeit some are absolute, some limited, others qualified). Giving undue priority to freedom of expression in primary legislation could undermine the ability of individuals to enforce their rights to privacy, a fair trial and freedom of assembly and upset the balancing exercise the courts currently undertake when competing rights are engaged.

The Government’s proposals to amend section 12(3) would limit the ability of individuals seeking to enforce their rights, for example, to private and family life, or to a fair trial, where an imminent publication of material could constitute a breach of those rights. The purpose of interim injunctions is to prevent injustice before a trial of the issues can take place. The higher the threshold introduced by the Government, the more likely that injustice and breaches of privacy and fair trial rights will result from the publication of material.

If the Government creates a strong presumption in favour of freedom of expression in primary legislation, this may undermine the balancing exercise which the courts currently undertake when there are competing rights engaged. If the UK falls short in the balancing exercise between two rights which enjoy equal protection under the Convention, the methodology applied by the Court may lead it to find a procedural violation.

It is not clear why the Government believes the current legal framework for the protection of journalists’ sources is inadequate. The Government ought to publish its reasoning and put forward clear proposals to allow for detailed analysis.

The inclusion of the right to trial by jury in the Bill of Rights would have no obvious legal significance. Its proposed inclusion appears to be symbolic. During the pandemic, the Government suspended jury trials before the Crown Court on the grounds of a public health emergency, which led to inevitable delays to justice. If the British Bill of Rights contained specific protections for the right to trial by jury, the Government may be open to challenge if they seek to reduce the scope of jury trials, or suspend jury trials, in the future. (Paragraph 221) 84 Human Rights Act Reform

The Government states it is their intention to “create a Bill of Rights for the whole of the United Kingdom, founded on principles common to us all.” However, the right to jury trial does not exist in Scottish procedure. The Bill of Rights would therefore diverge from universality, as not all rights would be given effect in all four jurisdictions. It will be a matter for the Scottish Parliament to determine whether to make any amendments to their criminal justice system.

We urge the Government to ensure that it publishes detailed and disaggregated statistics in order to ensure transparency and enable stakeholders to analyse the evidence base for proposals.

In order to comply with Convention rights, the courts must be able to undertake a balancing exercise and proportionality assessment when considering FNO deportations. Each of the proposed options for reform would tip the balance even further away from individual rights and strengthen the existing presumption in favour of deportation. If it becomes virtually impossible to displace this presumption, the balancing exercise is rendered null and void.

These proposals would (i) deny FNOs their full Convention rights, thereby undermining the principle of universality of rights; (ii) remove the safeguard of meaningful judicial oversight; and (iii) place important human rights considerations in the hands of the Home Secretary, who is not an independent decision-maker. They are therefore likely to lead to increased litigation and potentially adverse judgments before Strasbourg.

The principle of non-refoulement guarantees that no one should be returned to a country where they would face the risk of irreparable harm. Changes to the law which undermine the principle of non-refoulement would violate the UK’s international obligations. It is concerning that the Government perceives legal obligations arising from the Convention and the Human Rights Act as “impediments”. The courts must not be prevented from carrying out an effective assessment of whether removal amounts to a justified interference with rights. We reiterate our concerns with the Nationality and Borders Bill, as set out in our reports on the Bill.

The case law of the ECtHR recognises that where a state is exercising effective control over individuals or territory then Convention rights should apply irrespective of location. If states wish to disapply certain provisions of the Convention due to a “war or other emergency” then Article 15 ECHR is available to them. The extraterritorial application of the Convention has been crucial in holding the Government to account for human rights violations of civilians and British soldiers whilst operating overseas. Whilst there may be no harm in undertaking dialogue at the Committee of Ministers to clarify the scope of extraterritorial jurisdiction, any reduction in scope may result in the removal of remedies for human rights violations committed overseas. Rights protections should not be reduced when the state is exercising effective control over individuals or territory just because the state is operating overseas. (Paragraph 245) Human Rights Act Reform 85 Human rights and the devolution framework

Various proposals in the consultation would weaken the current protections in the HRA, including access to the courts and remedies available for breach of the Convention. The Committee shares IHRAR’s concern that weakening the HRA would have a significant impact on the Belfast/Good Friday Agreement, which in turn risks upsetting the peace settlement in Northern Ireland.

The Government must provide more transparent and detailed reasoning regarding how and why it has concluded that the proposals in the consultation are compatible with the Belfast/Good Friday Agreement.

Any proposals to amend the HRA must take account of its unique role in the constitutional arrangements of the devolved nations, the implications for the future of the union and the impact of any differing standards of human rights protection across the devolved nations.

The Government must engage closely with Northern Irish, Scottish and Welsh stakeholders before putting forward proposals to reform the Human Rights Act. (Paragraph 264) 86 Human Rights Act Reform