On 14 December 2021, the UK Government launched a consultation on proposals to reform the Human Rights Act 1998 (“HRA”) entitled “Human Rights Act Reform: A Modern Bill of Rights” (“Consultation“). The Consultation recently closed for most recipients, and its outcome could reshape existing constitutional norms and protections, as well as opening a path to the light-touch regulatory economy reportedly envisaged as part of the UK’s post-Brexit future.
(a) Background to the Consultation
The Consultation followed the submission of a report to the Government by the Independent Human Rights Act Review (IHRAR) panel (“Panel“), led by Sir Peter Gross (the “Report“). The Panel’s review sought to examine whether the HRA “is working in practice” and “continues to meet the needs of the society it serves,” looking specifically at two key themes:
1. the relationship between domestic courts and the European Court of Human Rights (ECtHR)
2. the impact of the HRA on the relationship between the judiciary, the executive and the legislature
Baker McKenzie participated in the Panel’s call for evidence as part of its review, collaborating with the Law Society and, separately, several industry representative bodies on responses as well as issuing our own, which is available here.
In the Report, the Panel did not identify evidence that made a case for significant changes to the current operation of the HRA, which the Panel acknowledged was supported by the vast majority of submissions it received. Indeed, Sir Peter Gross noted the Panel’s view that the HRA “works well and has benefitted many“. That said, the Report did contain a number of limited proposals designed to improve how the HRA works, both domestically and in the UK’s relationship with the ECtHR. The Panel also highlighted that the effectiveness of the HRA could not just be measured in the courtroom, and identified a need for greater education on the HRA to increase public ownership of the HRA and its concepts.
(b) The Government’s proposals
The Government responded to the Report by setting out its proposals to reform the HRA in the Consultation. In contrast to the IHRAR’s proposals, the Government’s proposals – if implemented – would lead to some fundamental changes which could have significant implications for the rights and standards to be observed in the UK, the ability of individuals to enforce their rights directly before domestic courts and the scrutiny of the exercise of executive power. For example, the Consultation envisages that the Bill of Rights could:
- Make sure that the UK courts are not required to alter or interpret legislation contrary to Parliament’s clearly expressed democratic will. Despite recommendations in the Report to amend section 3 of the HRA (the interpretative duty) to, amongst other things, clarify the order of priority of interpretation and enhance the role of Parliament, the Consultation requests responses on options including the complete repeal of section 3. In our response to the Consultation, we re-iterated comments made in our response to the Panel’s call for evidence – namely, that we consider the complementary framework established by sections 3 and 4 HRA to be functioning well and see no need of replacement or amendment. We also noted that the Panel reached the same conclusion in the Report, stating expressly that there is no substantive case for the repeal or amendment of section 3, save for the recommendation that the section be amended to clarify the order of priority of interpretation.
- Restrain the ability of the UK courts to use human rights law to impose ‘positive obligations’ onto public authorities without proper democratic oversight. In our response to the Consultation, we note that the duty imposed on public authorities not to act incompatibly with certain rights and freedoms under the European Convention on Human Rights (ECHR) is an important mechanism through which the HRA helps to regulate the behaviour of public authorities. The duty also ensures that obligations under the HRA are ‘built in’ to public authority decision making. Diluting it could therefore lead to the unintended outcome of increasing litigation, as well as removing the culture of compliance that currently exists.
- Implement a permission stage, similar, but not identical, to those in other branches of law, to ensure that the courts focus on “genuine human rights matters”. In our response to the Consultation, we note that the introduction of such a threshold risks establishing a category of “acceptable” human rights abuses, which cannot be challenged in the courts or remedied. This could have serious consequences for access to justice and the ability of individuals to enforce their human rights.
- Recognise that responsibilities exist alongside rights, which should be reflected in the approach to balancing qualified rights and the remedies available to claimants for human rights claims. In our response to the Consultation, we note our concern that the introduction of such a provision could have the unintended consequence of increasing litigation to consider the threshold at which a claimant’s conduct engages such a provision. It is also unclear why the Government does not appear to consider that reciprocal obligations on defendants are required.
Baker McKenzie’s submitted its response to the Consultation on 8 March 2022, following roundtable discussions with a number of stakeholders and hosted by the Law Society.
WHAT DOES THIS MEAN FOR INDUSTRY?
The HRA ensures consistency across the many thousands of acts or decisions of public authorities that are made each year by ensuring that they are compliant with the ECHR. Securing a level playing field in this regard between jurisdictions is a key concern for many international corporate clients who are affected by the decisions of public authorities across multiple European jurisdictions, as well as European domestic legislatures.
If, having considered the responses to the Consultation, Parliament decides to take action that might render rights protections vulnerable to executive overstep and/or remove a crucial mechanism by which the executive might be held to account for any abuse of power, this could affect the UK’s ability to offer this certainty as to the rights and standards to be observed in the UK.