On 14 July 2022, the House of Lords is due to debate the following motion:

Baroness Whitaker (Labour) to move that this House takes note of the practical impact of the Human Rights Act 1998.

1. What does the Human Rights Act 1998 do?

The Human Rights Act 1998 (HRA) came into force on 2 October 2000.

It brought certain rights and freedoms set out in the European Convention on Human Rights (ECHR), otherwise known as the Convention for the Protection of Human Rights and Fundamental Freedoms, into UK law. The ECHR is an international treaty agreed to by all members of the Council of Europe that sets minimum standards for people’s human rights. The Council of Europe is not part of the European Union but is a separate international organisation that promotes human rights, democracy and the rule of law. The ECHR contains basic rights and freedoms that countries which have signed up to the ECHR are required to respect. The UK—one of several countries involved in drafting the ECHR—ratified it in 1951.

The rights and freedoms protected by the HRA include the:

  • right to life
  • right to respect for private and family life
  • right to liberty and security
  • freedom from torture and inhuman or degrading treatment
  • freedom from slavery and forced labour
  • freedom of expression

The ECHR also provided the basis for the establishment of the European court of human rights (ECtHR). Based in Strasbourg, France, the ECtHR is an international court responsible for ensuring that signatory countries respect the rights and guarantees set out in the ECHR. It does this by examining complaints lodged by individuals or states. If the ECtHR finds that an applicant’s human rights have been breached, it can deliver binding judgments on relevant countries. A key purpose of introducing the HRA—according to the then Labour government that introduced the Human Rights Bill in 1997—was to “bring rights home” and enable UK citizens to take alleged breaches of ECHR rights in front of UK courts. Prior to the HRA, UK applicants were required to take cases to the ECtHR.

The HRA also requires:

  • UK law to be interpreted in a way that is compatible with the ECHR. The HRA (section 3) requires, so far as possible, UK legislation to be read and given effect in a way that is compatible with the ECHR. Senior UK courts, including the supreme court, have the power to decide that a piece of domestic legislation is incompatible with the ECHR. In these circumstances, the court can make a ‘declaration of incompatibility’. This declaration would not stop the incompatible law continuing to operate or be enforced, however Parliament could decide to amend the law.
  • Public authorities to act compatibly with the ECHR. It is unlawful for a public authority to act in a way that is incompatible with the ECHR (section 6 of the HRA). ‘Public authorities’ are considered to be a court or tribunal, or any person who has ‘functions of a public nature’. This does not include either House of Parliament, nor anyone exercising functions connected with parliamentary proceedings.
  • Government ministers, when introducing legislation, to publish a statement on its compatibility with the ECHR. Government ministers, when introducing bills into Parliament, must confirm that a bill’s provisions are compatible with the ECHR (section 19 of the HRA). This must be done via a written statement published before the bill’s second reading. If a minister is unable to make a statement of compatibility, they must make a written statement confirming that the government nevertheless wishes for the bill to proceed.

2. Reforming the Human Rights Act 1998

Discussions about reforming the HRA are not new and have developed over time.

For example, the Conservative Party raised the issue in 2006 when David Cameron, then leader of the opposition, delivered a speech in which he argued for a “modern British bill of rights” that “balances rights with responsibilities”. He explained that such a bill of rights would be an opportunity to “protect the fundamental rights set out in the [ECHR] in clearer and more precise terms”.

Several years later, the Conservative Party’s 2010 general election manifesto included a pledge to replace the HRA with a UK bill of rights. However, this legislation did not make it into the coalition agreement.

In 2019, the Conservative Party’s 2019 general election manifesto included a commitment to update the HRA and administrative law and look at the balance between the rights of individuals, national security and effective government in the UK.

The government launched an independent human rights act review (IHRAR) into the HRA in December 2020. A panel chaired by Peter Gross, a former lord justice of appeal, considered how the HRA was working in practice and whether changes were needed. The review’s final report recommend some changes to the HRA, including amending section 2 to require domestic courts, when interpreting ECHR rights, to consider UK statute and case law first, before taking account of ECtHR case law. However, the IHRAR panel said that the “vast majority of submissions” received by the panel had spoken “strongly in support of the HRA”.

Following this independent review, the government announced its HRA reform plans in a consultation launched on 14 December 2021. The government said it supported ECHR rights but believed the framework for the application of human rights under the HRA was flawed. Key reasons why it believed HRA reform was needed included the following:

  • Growth of a ‘rights culture’ that has displaced due focus on personal responsibility and the public interest. The government said that since 2000, certain human rights claims had been brought by people who have themselves “showed a flagrant disregard for the rights of others”. For instance, the right to respect family and private life has been relied on by foreign offenders to avoid deportation.
  • Creation of legal uncertainty, confusion and risk aversion for those delivering public services on the frontline. The government said the application of the HRA in the UK had given rise to legal uncertainty. For example, in the case of Ziegler, several convictions for wilfully obstructing a highway were set aside by the UK supreme court on the basis that, under the ECHR, protestors could have a ‘lawful excuse’ for deliberately physically obstructive conduct. This was the case even though, as occurred in Ziegler, the conduct prevented others from exercising their rights to pass along the highway. The government said this case highlighted the problems that the HRA had created when assessing proportionality in relation to ECHR rights. It stated that this legal uncertainty had sometimes led to public authorities taking cautious approaches that were contrary to the public interest.
  • Public protection put at risk by the exponential expansion of rights. Since the HRA came into force, the legal framework within which public authorities operate had become less certain, the government said. It referred to circumstances where operational decisions had been challenged by courts “second guessing [public authorities’] professional judgement”. It said this had led to UK courts and the ECtHR creating principles that dictated how public authorities (such as police forces) should carry out their duties.
  • Public policy priorities shift from Parliament to the courts, creating a democratic deficit. When defining ECHR rights in domestic law and weighing them against the broader public interest, the government said there had been a shift of law-making power away from Parliament towards the courts. It said this had led to a sense that the human rights system had “lost touch with common sense, extending beyond the oversight and control of democratically elected representatives”.
  • Rebalance of power between UK courts, the ECtHR and Parliament. The government’s stated ambition to balance the relationship between the UK courts, the ECtHR and Parliament is another reason behind its proposed HRA reforms. The HRA (section 2) requires UK courts to take into account any judgment, decision, declaration or advisory opinion of the ECtHR, if relevant. The government said ambiguity in the HRA had promoted an overreliance by UK courts on ECtHR case law, instead of courts applying the ECHR rights in a UK context. This had caused a constitutional shift in the balance between Parliament, the executive and the judiciary, the government said.

On 24 June 2022, the government published the outcome of its HRA reform consultation. This set out proposals to replace the HRA with a UK bill of rights. This said the new bill of rights would do several things, including:

  • retain all substantive rights under the ECHR and HRA, with some rights (such as freedom of expression) being strengthened under the new bill, and others (such as the right to trial by jury) being added
  • enable UK courts to apply human rights in a UK context, taking account of UK common law traditions and judicial practice as an additional consideration to the case law of the ECtHR
  • provide greater clarity regarding the interpretation of certain rights, such as the right to respect for private and family life
  • make sure that the UK courts are not required to alter or interpret legislation contrary to Parliament’s clearly expressed democratic will

3. What would the Bill of Rights Bill do?

The government introduced the Bill of Rights Bill into the House of Commons on 22 June 2022. The bill’s explanatory notes said the provisions would still give effect to the ECHR, but would do several additional things, including:

  • ensure human rights are not interpreted “over-expansively”, and considered in view of the UK’s distinct contexts
  • increase democratic oversight of human rights issues
  • reduce burdens on public authorities
  • give “great weight” to the views of Parliament in considerations of public interest
  • implement a permission stage during legal proceedings to ensure ‘trivial’ cases do not undermine public confidence in human rights
  • ensure Parliament’s role in responding to adverse judgments of the ECtHR
  • strengthen the right to freedom of speech
  • provide that some rights cannot prevent the deportation of foreign criminals, except in very narrow circumstances

The bill would also explicitly affirm that the UK supreme court (and not the ECtHR) would be the official authority that could decide what ECHR rights mean in UK law. Additionally, UK courts would be under no obligation to follow ECtHR case law and could diverge from it. Currently, section 2 of the HRA requires domestic courts to consider ECtHR case law when determining how to apply ECHR rights in the UK.

The government said the bill would “restore a common-sense approach” to human rights in the UK by protecting people’s rights, safeguarding the public interest and “respecting the will” of parliamentarians.

The bill’s second reading in the House of Commons is yet to be scheduled.

4. Reaction to reform proposals

Reform of the HRA continues to be a polarising issue amongst parliamentarians, the judiciary, think tanks and human rights organisations.

The Labour Party has criticised the government’s focus on HRA reform. In December 2021, the shadow justice secretary, Steve Reed, accused the government’s focus of being misplaced. He argued that ministers should concentrate on addressing “failures” in the criminal justice system instead of making reforms to the HRA. Mr Reed said the Labour Party would oppose the government’s HRA reform proposals.

Certain reform proposals have come under the spotlight from the judiciary, specifically the government’s plan to replace section 2 of the HRA and allow UK courts to diverge from ECtHR case law when determining how to apply ECHR rights in the UK. A former justice of the UK supreme court, Lord Carnwath of Notting Hill, did not agree with the government’s plans to do this. Lord Carnwath said UK courts interpreted section 2 in a practical way and followed clear lines of decisions from the ECtHR, unless this was otherwise inconsistent with certain aspects of UK law. He remained unpersuaded that a bill of rights—to be administered by UK courts alongside the still-binding ECHR—would assist the UK human rights process.

The Joint Committee on Human Rights also disagreed with several reform proposals. It did not believe the HRA should be replaced with a bill of rights in the form proposed by the government. The committee said the HRA has had a positive impact on enforcement and accessibility of rights in the UK. The committee also questioned the synergy between the government’s reform proposals and the IHRAR panel’s recommendations. The committee highlighted evidence given to the House of Commons Justice Committee by the IHRAR panel chair, Peter Gross, that said the government’s consultation could not be characterised as a response to the IHRAR report. Mr Gross said “you cannot put [the IHRAR report] down here, the Government’s consultation down there and say that the two work together”.

Following the publication of the Bill of Rights Bill itself, discussions about the potential impact on the UK’s human rights framework have continued inside and outside of Parliament.

On 23 June 2022, the government repeated a statement in the House of Lords about the bill’s introduction to the House of Commons. It said the problems that the UK had encountered with the HRA stemmed from “elastic interpretation and expansion” caused by the HRA framework. Some peers raised concerns about the bill during the debate. Shadow Justice Spokesperson Lord Ponsonby of Shulbrede said the bill had the potential to reduce the ability of victims to get a remedy through the ECHR framework. However, other peers spoke positively about certain bill provisions, including the Lord Bishop of Blackburn who said he supported the provisions that strengthened the right to free speech.

However, some legal sector and human rights organisations remain unconvinced by the reform proposals. For example, the Law Society said it believed the bill would reduce the level of human rights protection in the UK. It argued that the provisions would weaken the ability to enforce human rights through the UK courts and hold the state accountable for any human rights violations. President of the Law Society Stephanie Boyce described the bill as a “lurch backwards for British justice”.

Martha Spurrier, director of human rights organisation Liberty, also argued that the bill would make it harder for people to access justice. Additionally, the British Institute of Human Rights argued the HRA had been working well to provide legal protection to the public’s fundamental human rights. On this basis, it did not support the bill.

Despite these concerns, the government has received some support in its endeavours to reform the HRA. The think tank Policy Exchange’s Judicial Power Project has argued that the HRA is not a good means of protecting and promoting human rights. It has said the HRA had encouraged political litigation and expanded judicial power which “threaten[ed] to compromise parliamentary democracy, the rule of law, and effective government”.

The government has maintained that HRA reform is required. It said the bill would “curtail the abuses of human rights, restore some common sense to our justice system, and ensure that our human rights framework meets the needs of the society it serves”.

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Cover image by Sang Hyun Cho on Pixabay.