Reforming the Human Rights Act: A Consultation on the Modern Bill of Rights – Response from the Law Society

Proposals

The Ministry of Justice (MoJ) has organized a consultation to seek views on proposals for reform of the Human Rights Act (HRA).

This followed the independent review of the Human Rights Act, which carefully considered options for reform.

Read our response to the recommendations made by the review

The government’s proposals go further than the review’s recommendations.

Proposals include:

  • amending or removing the courts’ obligations to take account of the case law of the European Court of Human Rights and to interpret legislation in a manner compatible with the rights of the Convention
  • the introduction of an authorization stage for human rights claims, where claimants must prove that they have suffered a “significant disadvantage”
  • limit the times when public authorities are held accountable for human rights violations
  • extend the use of declarations of inconsistency to secondary law and introduce suspended and prospective avoidance orders in human rights complaints
  • restrict the application of human rights in cases of deportation
  • changing the way rights are balanced against each other, such as free speech and privacy, or against the public interest
  • limit the extraterritorial application of human rights.

Our point of view

We do not believe that the radical reforms proposed are justified.

We are concerned that the proposed reforms fail to recognize the significant benefits that have been achieved for British society through the HRA in improving access to justice and the rule of law.

We believe that the proposals:

Undermining the rule of law

A significant number of proposals reduce government liability or protect public bodies from liability. It undermines a crucial element of the rule of law, preventing people from challenging unlawful uses of power and undermining good governance.

Prevent access to justice

Reduced government accountability undermines the ability to access justice. Several proposals would make it more difficult to file human rights complaints or reduce the availability of effective remedies.

Remove or reduce rights

It is alarming that the proposals include the removal of rights on a general basis from certain categories of individuals. Other proposals reduce protections or lead to a general lowering of human rights standards.

Drive more cases to the European Court of Human Rights

This would reduce the protection of human rights, making it more difficult for national courts to enforce them.

Taking a different approach to rights under the European Convention on Human Rights makes it more likely that people will have to take their case to the European Court of Human Rights.

It costs more and takes more time.

Impact devolution

The Human Rights Act is embedded in devolution agreements in Wales, Scotland and Northern Ireland, so changing it has implications for how devolution works.

The decentralized governments have made it clear that they are not in favor of its modification and that the reforms therefore constitute a risk for the good relations in progress.

Damaging the UK’s international reputation

The reform package risks undermining international confidence in our commitment to human rights.

This undermines our global standing and our ability to hold other countries to account for human rights abuses.

It also undermines the attractiveness of the UK as a place where the world can do business, which depends on our clear commitment to the rule of law.

Reduce legal certainty

The scale of the reforms means that a large number of new standards, definitions and procedures would be introduced.

This will encourage litigation to test the limits of these, which will disrupt the law, leaving people uncertain of their rights and public bodies of their obligations.

Increase cost and complexity

The complexity of procedures, the creation of litigation and the increase in applications to the European Court of Human Rights will increase the costs for:

  • applicants
  • public bodies
  • the judicial system

Several proposals would be complicated and probably impractical to implement.

Our recommendations

We don’t think the majority of reforms are necessary, so don’t support their implementation.

The proposals we support are:

  • the introduction of a database of judgments that rely on interpretation under section 3 of the Human Rights Act, which will allow for a better understanding and examination of the use of the item 3
  • change the remedy order process so that it cannot be used to change the Human Rights Act itself

We also recommend:

  • implement the recommendation of the Independent Human Rights Act Review to develop a civic and constitutional education program to improve understanding of:
    • the HRA
    • its place in our constitution
    • the rights and freedoms it contains
  • the introduction of class actions for human rights complaints, allowing a single case to be brought when there are several complaints on the same issue and with common facts.
  • create a role for the Joint Human Rights Committee in monitoring and reviewing judgments that are based on an interpretation of the law under section 3 of the Human Rights Act
  • consider creating a mechanism to review human rights judgments and assess where legislative or policy changes are needed
  • provide additional training to help public bodies understand and apply their obligations under the Human Rights Act.
  • create a system of independent judicial review of decisions to detain suspected insurgents abroad

Next steps

The main consultation closed on March 8, 2022.

An extension has been made available for those who need easy-to-read or audio versions until April 19, 2022.

If you need one of these, email [email protected] to request the extension.

The government will then review submissions to the consultation and publish a response on the GOV.UK website.

Read the consultation on the GOV.UK website