On 14 December, the government published the report of the Independent Review of the Human Rights Act 1998 and also published a consultation containing the government's proposals for change. The consultation is open for responses until 8 March 2022.
Commons Statement 14 December 2021 - Human Rights Legislation - Hansard - UK Parliament
Independent Review of Human Rights Act 1998 - report - (580 pages pdf)
Human Rights Act Reform: A Modern Bill of Rights - GOV.UK (www.gov.uk) - with link to consultation document (123 pages pdf)
This post looks at Chapter 4 of the government's consultation - the Reform Proposals. There is a lot in it and what follows is, of necessity, an overview. Several of the topics covered would merit considerably greater analysis - e.g. the proposals on Freedom of Expression.
Even an initial reading of Chapter 4 shows that the proposals go far beyond what the Independent Panel considered to be required and, in some instances, the proposed reforms were not referred to or discussed by the Independent Review.
Chapter 4 is lengthy and results in 29 Questions to which any organisation or individual may respond either in full or in part.
* The basic plan *
This is to be found at paras 182 to 188.
- The government wishes to introduce a BILL of RIGHTS.
- Remain party to the European Convention on Human Rights
- The Rights as set out in Schedule 1 to the HRA will remain.
- No addition of new rights in areas such as economic or social policy
- Reinforce the supremacy of the Supreme Court in the interpretation of rights.
- Filter out "unmeritorious" cases earlier
- Give UK courts greater clarity regarding the interpretation of qualified rights and imposition by implication of 'positive obligations'
- Limit the duty on UK courts to 'read down' legislation
- Emphasis on the role of responsibilities in interpreting qualified rights and awarding compensation
- make clear and reinforce Parliamentary sovereignty in the exercise of the legislative function, whilst remaining in dialogue with Strasbourg and devolved administrations.
c) Trial by Jury -
Paras 203 and 203 look at jury trial. "The government believes that there may be scope to recognise trial by jury in the Bill of Rights, given its significant historical place in our legal traditions, and the role it plays in securing the fairness of certain trials." This belief only extends "insofar as trial by jury is prescribed by law in each jurisdiction, under the control of Parliament for England and Wales, and of the Scottish Parliament and the Northern Ireland Assembly for Scotland and Northern Ireland respectively." It is then asked - "Should the qualified right to jury trial be recognised in the Bill of Rights? Please provide reasons."
At first blush this takes us no further than the present position. Trial by jury for serious criminal cases is already the norm but there are exceptions such as trial by judge alone under Part 7 of the Criminal Justice Act 2003 or, in Northern Ireland, for certain cases - Law and Lawyers: Dennis Hutchings ~ Application for Judicial Review (obiterj.blogspot.com). Furthermore, thousands of criminal offences are dealt with by the Magistrates' Courts entirely without juries and some of those offences are of a serious nature.
In civil cases, juries are very rare (e.g. some defamation cases) and, at inquests, they are the exception rather than the rule - Coroners and Justice Act 2009 (legislation.gov.uk)
A jury in a criminal case does however have an important right stemming from Bushel's case 1670 where the independence of the jury was embedded into the common law - ‘Not only a right, but a duty’: A history of perverse verdicts – The Justice Gap. The right is that a jury may decide the case even against the weight of the evidence. This has occasionally occurred where, for some reason, the jury feels that a prosecution is oppressive. There is also the view - (which, at least for me, still has resonance) - that the jury is the lamp which shows that freedom lives (Lord Devlin Trial by Jury, (1956), p 164.).
A speech by Lord Hodge (now Deputy President of the Supreme Court) is of interest - The involvement of the public in the criminal process in the United Kingdom (supremecourt.uk).
Lord Hodge notes that - " ... the jury has long been seen as an “integral and indispensable part of the criminal justice system” and also of “constitutional significance” - see the speech of Lord Steyn in R v Connor [2004] UKHL 2.
Overall, to build jury trial into the British Bill of Rights would confirm the importance of the jury within the nation's criminal justice systems.
d) Freedom of Expression -
A very big subject and one that is fraught with difficulties!
Section 12 HRA recognises to some extent the important of freedom of expression but the section appears to have had minimal impact on the how the law has developed. A number of changes are proposed and are the subject of questions 4 to 7.
* Restoring a sharper focus on protecting fundamental rights *
A permission stage for human rights claims -
The government wishes to see "unmeritorious" cases filtered out sooner. They point to a loss of public trust when "frivolous or spurious cases" come before the courts (para 219). Quite frankly, this is a risible statement. The impact of a breach of human rights will obviously vary according to individual circumstances but breaches ought not to classed as "frivolous or spurious." Sometimes, breaches might go on for a long period before anyone brings a challenge and, as is well-known, small breaches can lead to more serious examples.
The government wants a focus on cases where "genuine harm or loss has been caused" and wishes to place on the claimant the burden of showing that a claim merits the court's attention and resources. Claimants will have to show a "significant disadvantage." In other words, what might be seen by some as minor breaches will possibly go without legal redress.
The burden on claimants will be subject to an overriding public importance clause so that, at the court's discretion, a case can still proceed if there are "highly compelling reasons on grounds of public importance."
Many legal rights point arise in judicial review proceedings though it is possible to raise such points in any civil litigation or criminal case. Judicial review is already a difficult and expensive process and will be made more so by the government's Judicial Review and Courts Bill ~ proposed changes to judicial review (obiterj.blogspot.com)
At the very least, this amounts in my view to a reduction in human rights protection. Questions 8 and 9 apply.
[For the difficulties already involved in Judicial Review see Enforced quarantine in hotels: a breach of the right to liberty? - UK Human Rights Blog]
Judicial Remedies: section 8 of the Human Rights Act -
The government wants a Bill of Rights to refocus rights-based claims on serious cases where a genuine injustice needs to be addressed. Human rights should not be misused to provide a fall-back route to compensation on top of other private law remedies. They should be relied upon when a genuine and serious breach has taken place, and our reforms will aim to clarify this.
The propose to require applicants to pursue any other claims they may have first, either so that rights-based claims would not generally be available where other claims can be made, or in advance of any rights argument being considered, to allow the courts to decide whether the private law claims already provide adequate redress.
The propose a strengthening of section 8(3) HRA but then ask (Q10) - How else could the government best ensure that the courts can focus on genuine human rights abuses.
Positive Obligations -
The Convention rights have been interpreted and incrementally expanded by the courts to require the state to discharge various ‘positive obligations’.
The expansion of such ‘positive obligations’ has involved extending the Convention by judicial implication, which has created uncertainty as to the scope of the government’s (and other public authorities’) legal duties, thereby fettering the way it can make operational decisions, determine policy in the wider public interest, and allocate finite taxpayer’s resources. The government is interested in looking at ways to restrict the circumstances in which these obligations are imposed by what can amount to judicial legislation.
Q11 then asks - "How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities from being impacted by costly human rights litigation? Please provide reason."
Here we are being asked to write the restrictions which the government wishes to see. Why should we do so? Let the government make a proposal so that it can be debated adequately.
* Preventing the incremental expansion of rights without proper democratic oversight *
This section of the consultation covers 10 topics which are the subject of paras 232 to 301 and Questions 12 to 26. The government's complaint is that rights have been expanded incrementally without "proper democratic oversight." Of course, it was (and is) always open to politicians to open a debate in Parliament about any matter of concern or to seek the views of Parliament's Joint Committee on Human Rights. In theory, Parliamentary business is not constrained by any law but is, in practice, largely (though not entirely) controlled by the executive.
Respecting the will of Parliament -
At para 233 - "The balance struck between Parliament making legislation and how that legislation is interpreted by the courts sits at the heart of our constitution. The Human Rights Act has given rise to much debate on the subject, especially in relation to section 3 (the duty to interpret legislation compatibly with Convention rights) and section 4 (the power to make a declaration of incompatibility)."
The government argues for "a less expansive interpretive duty" than section 3 that would "provide greater legal certainty, a clearer separation of powers, and a more balanced approach to the proper constitutional relationship between Parliament and the courts on human rights issues."
The government agrees with the Independent Review that section 3 should not be repealed but seeks reform so that how to interpret legislation is clearer. They also seek responses on the possibility of "enhancing Parliamentary oversight and scrutiny of the operation of section 3, taking into account the considerations of the IHRAR Panel."
Options are the put forward. Option 1 - repeal and not replace section 3. Option 2 - repeal section 3 and replace it with a provision that where there is ambiguity, legislation should be construed compatibly with the rights in the Bill of Rights, where such interpretation can be done in a manner that is consistent with the wording and overriding purpose of the legislation."
Illustrative Draft clauses appear at Appendix 2. The two alternative formulations would replace the words ‘so far as it is possible to do so’ with a more restrictive limitation on the power to interpret. This would provide a more balanced position between respecting the will of Parliament and the presumption that legislation should be compliant with human rights."
There is also a question on Parliament's role - Question 13: How could Parliament’s role in engaging with, and scrutinising, section 3 judgments be enhanced and Question 14 - Should a new database be created to record all judgments that rely on section 3 in interpreting legislation?
Q13 seems to be a matter lying entirely in the hands of Parliamentarians. The business of Parliament is, after all, for Parliament to determine. A database might well assist provided that it was properly resourced.
When legislation is incompatible with the Convention rights: sections 4 and 10 of the Human Rights Act -
Declarations of incompatibility - Where it is not possible for primary legislation to be interpreted compatibly with the Convention rights, section 4 of the Human Rights Act allows the higher courts to make a declaration of incompatibility. This does not invalidate the legislation: it is for Parliament to consider what action, if any, it wishes to take in response to this declaration.
The position of devolved legislation is different: the devolution settlements set out that legislation which is incompatible with the Convention rights is outside the competence of the devolved legislatures and is, therefore, not law. In practice, declarations of incompatibility under section 4 have only ever arisen in respect of legislation of the UK Parliament.
The government believes that declarations have been an effective way of recognising the democratic role of Parliament and wishes to retain them.
The government wishes to "explore whether there is a case for providing that declarations of incompatibility are also the only remedy available to courts in relation to certain secondary legislation - i.e. rather than setting aside the secondary legislation. Q15 - Should the courts be able to make a declaration of incompatibility for all secondary legislation, as they can currently do for Acts of Parliament?
Q16 asks whether proposals for suspended and prospective quashing orders put forward in the Judicial Review and Courts Bill should be extended to all proceedings under the Bill of Rights where secondary legislation is found to be incompatible with the Convention rights?
Remedial Orders - Para 255 notes - "In practice, because of its complexity, the Parliamentary procedure for making a non-urgent remedial order still takes around one to two years, and, as such, offers limited benefits in terms of speed compared to primary legislation."
This seems to be an excessive timescale given the speed at which sometimes Parliament can act. "Complexity" is not entirely convincing.
Q17 asks - Should the Bill of Rights contain a remedial order power? In particular, should it be: (a) similar to that contained in section 10 of the Human Rights Act; (b) similar to that in the Human Rights Act, but not able to be used to amend the Bill of Rights itself; (c). limited only to remedial orders made under the ‘urgent’ procedure; or (d) abolished altogether? Option (b) is essentially supported by the Independent Review.
Statement of compatibility - section 19 of the Human Rights Act - Section 19 requires the minister introducing a Bill into Parliament to express his or her view as to the compatibility of the legislation with the Convention rights, by making and publishing one of two statements before Second Reading of the Bill in each House. The minister must state either in his or her view that the Bill is compatible with the Convention rights (section 19(1)(a)), or that, although he or she is unable to make that statement, the government nevertheless wishes Parliament to proceed with the Bill (section 19(1)(b)).
Such statements send out a message either that the government considers either (a) the legislation to be compatible or (b) that it does not. A government seeking to legislate in an incompatible way must therefore face up to that fact and declare its hand at an early stage. In situation (a) it remains open to Parliament to challenge the government's view as the Bill proceeds through its various stages. In situation (b), Parliament could reject the Bill or seek to have it amended. When the Bill eventually becomes law as an Act, the courts then have before them the view about compatibility.
Q18 asks - "We would welcome your views on how you consider section 19 is operating in practice, and whether there is a case for change."
Application to Wales, Scotland and Northern Ireland - The government asks whether there is a need for the proposed reforms to proceedings and remedies to be varied to best reflect the different legal systems in Scotland and Northern Ireland? The government would welcome views as to where, if at all, such variation might be sensible and appropriate.
Question 19: How can the Bill of Rights best reflect the different interests, histories and legal traditions of all parts of the UK, while retaining the key principles that underlie a Bill of Rights for the whole UK
Public authorities – section 6 of the Human Rights Act -
Human Rights Act 1998 s6 (legislation.gov.uk)
The government believes that the range of bodies and functions to which the obligations under the Human Rights Act currently apply is broadly right, and we intend to maintain this approach.
Having said that, the government goes on to ask (Q20) - "Should the existing definition of public authorities be maintained, or can more certainty be provided as to which bodies or functions are covered?"
Section 6(1) of the Human Rights Act makes it unlawful for a public authority to act in a manner which is incompatible with rights, and the Bill of Rights will continue this approach.
BUT
"It is also important that public authorities are not subject to litigation where they are acting to give effect to the direction and will of Parliament.
"This is recognised in section 6(2) of the Human Rights Act, which provides that an act will not be unlawful if the public authority did not, as a result of primary legislation, have any discretion to act differently, or if it was giving effect to statutory provisions which cannot be read compatibly with the Convention rights."
Two options for reform of section 6(2) are then discussed and are set out at Q.21 - "The government would like to give public authorities greater confidence to perform their functions within the bounds of human rights law. Which of the following replacement options for section 6(2) would you prefer?
Option 1: Provide that wherever public authorities are clearly giving effect to primary legislation, then they are not acting unlawfully; or
Option 2: Retain the current exception, but in a way which mirrors the changes to how legislation can be interpreted discussed above for section 3."
This question will require careful consideration.
Extraterritorial Jurisdiction -
The government concedes that this issue has to be addressed internationally - as stated by the Independent Review. Nonetheless, it goes on to ask Q22 - "Given the above, we would welcome your views on the most appropriate approach for addressing the issue of extraterritorial jurisdiction, including the tension between the law of armed conflict and the Convention in relation to extraterritorial armed conflict."
Qualified and Limited rights -
"The Convention recognises certain rights as ‘qualified’, which means they can be balanced with the rights of others and the needs of society in general. These rights include the right to respect for private and family life (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); and freedom of assembly and association (Article 11).
The Convention sets out the different possible limitations on these rights, but there are general principles which govern these: any interference must be in accordance with law, in pursuance of a legitimate aim, and necessary in a democratic society.
The Human Rights Act gave effect to this balancing exercise by allowing the courts to consider the actions of public authorities and decide, firstly, if a right had been infringed and, in the case of a qualified right, if that interference could be justified. This meant the courts were required to exercise broad powers to assess whether a public authority was acting in a proportionate way when its actions had infringed a person’s human rights."
The government's problem here is that "the Human Rights Act did not provide sufficient clarity in this area. We consider that the application of the principle of proportionality by the courts has created considerable uncertainty and impinged on the ability of elected lawmakers to balance individual rights with due respect for the wider public interest. We want decisions regarding human rights to be taken in a fair and balanced way, which consider the needs of the individual who has claimed that their rights have been infringed but also ensures due consideration of the rights of others and the diverse interests of society as a whole."
That leads to Q23 - "To what extent has the application of the principle of ‘proportionality’ given rise to problems, in practice, under the Human Rights Act? We wish to provide more guidance to the courts on how to balance qualified and limited rights. Which of the below options do you believe is the best way to achieve this?
Option 1: Clarify that when the courts are deciding whether an interference with a qualified right is ‘necessary’ in a ‘democratic society’, legislation enacted by Parliament should be given great weight, in determining what is deemed to be ‘necessary’.
Option 2: Require the courts to give great weight to the expressed view of Parliament, when assessing the public interest, for the purposes of determining the compatibility of legislation, or actions by public authorities in discharging their statutory or other duties, with any right.
Illustrative draft clauses appear in Appendix 2" The draft clause for Option 1 would make Parliament's view determinative of what is necessary in a democratic society provided that the view was set out in primary legislation or in secondary legislation approved by affirmative procedure. The clause for Option 2 refers to "public interest" rather to "what is necessary" and will provided that "great weight" be given to Parliament's view.
Deportations in the public interest -
"The government believes that the confidence of the wider public in our human rights framework is eroded when foreign criminals and others who present a serious threat to our society – including those linked with terrorist activity – can evade deportation, because their human rights are given greater weight than the safety and security of the public."
The Nationality, Immigration and Asylum Act 2002 set out the approach to be used when considering ECHR Article 8 claims. Part 5A was inserted by section 19 of the Immigration Act 2014 which came into force on 28 July. A Nationality and Borders Bill moved from the House of Commons to the House of Lords just before Christmas 2021.
The goverment wishes to go further when enacting the British Bill of Rights. Three options are put forward in Q.24 -
Option 1: Provide that certain rights in the Bill of Rights cannot prevent the deportation of a certain category of individual, for example, based on a certain threshold such as length of imprisonment;
Option 2: Provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights; and/or
Option 3: provide that a deportation decision cannot be overturned, unless it is obviously flawed, preventing the courts from substituting their view for that of the Secretary of State.
Illegal and Irregular Migration -
Here the government is concerned with removal of "failed asylum seekers" and "those who enter the UK through safe and legal routes but overstay their right to remain."
Q25 - "While respecting our international obligations, how could we more effectively address, at both the domestic and international levels, the impediments arising from the Convention and the Human Rights Act to tackling the challenges posed by illegal and irregular migration? Remedies and the wider public interest."
Although this appears in a Consultation document it is not truly a proposal but amounts to the government asking others to provide answers. Some of the options in Q24 (above) could of course apply to these categories of individuals.
Remedies and the wider public interest -
Here the government is concerned with awards of damages for breach of convention rights. Q26 states -
"We think the Bill of Rights could set out a number of factors in considering when damages are awarded and how much. These include:
(a) the impact on the provision of public services;
(b) the extent to which the statutory obligation had been discharged;
(c) the extent of the breach; and (d) where the public authority was trying to give effect to the express provisions, or clear purpose, of legislation. Which of the above considerations do you think should be included?"
Remedies are addressed by section 8 of the HRA. An award of damages has to be "necessary to afford just satisfaction to the person" - section 8(3) and, by section 8(4) when determining - (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."
Neither the Independent Review nor the Consultation document offer any detailed discussion of this issue and yet we are asked to give a response. It is hardly a satisfactory state of affairs.
One case in point was Faulkner, R (on the application of ) v Secretary of State for Justice and another [2013] UKSC 23 – read judgment
See also Lee-Hirons v Secretary of State for Justice [2016] UKSC 46 (27 July 2016) (bailii.org)
* Emphasising the role of responsibilities within the human rights framework *
The government believes that a new human rights framework should reflect the importance of responsibilities (para 302).
"As noted above, in the application of the qualified rights, the government believes that Parliament should authoritatively determine what is necessary in a democratic society. In addition, it should be clear that, when a court is considering the proportionality of an interference with a person’s qualified rights, it will consider the extent to which the person has fulfilled their own relevant responsibilities."
"For example, where a person is wanted for a crime, there should be no question of limiting the publication of their name and photograph because of their right to a private life." [This statement receives no adequate discussion in the consultation paper].
"The government would like to recognise the importance of responsibilities in an overarching provision in the Bill of Rights, whether outlined in a preamble or otherwise" - para 304
"We would also like to re-focus when remedies are provided under the Bill, including by expressly considering the wider behaviour of a claimant in light of their responsibilities to society" - para 305.
The ECtHR has allowed compensation to be reduced for 'undeserving' claimants - para 306,
The plan is to "build an element of responsibility explicitly into the Bill of Rights by permitting UK courts to consider the claimant’s conduct in deciding whether or not to award a remedy."
"The court will be invited to hear about the lawfulness of the claimant’s conduct in the circumstances surrounding the claim but could also be empowered to consider relevant past conduct, such as whether the claimant has respected the rights of others."
Q.27 - "We believe that the Bill of Rights should include some mention of responsibilities and/or the conduct of claimants, and that the remedies system could be used in this respect. Which of the following options could best achieve this?
Option 1: Provide that damages may be reduced or removed on account of the applicant’s conduct specifically confined to the circumstances of the claim; or
Option 2: Provide that damages may be reduced in part or in full on account of the applicant’s wider conduct, and whether there should be any limits, temporal or otherwise, as to the conduct to be considered."
* Facilitating consideration of and dialogue with Strasbourg, while guaranteeing Parliament its proper role *
"Under Article 46 of the Convention, States Parties are required to implement final judgments of the Strasbourg Court in cases brought against them. The implementation of judgments is overseen by the Committee of Ministers of the Council of Europe.
The government of the State Party concerned is ultimately responsible for answering to the Council of Europe on the implementation of a Strasbourg judgment. At the moment in the UK, the government co-ordinates all of the steps for implementing a final judgment, including, for example, proposing legislative amendments to Parliament if the judgment needs more than an operational or administrative response.
Under our system, however, democratic responsibility for legislation, and the power to legislate, lies ultimately with Parliament. The government strongly believes that this should be reflected in our arrangements for responding to Strasbourg judgments."
The consultation notes two possibilities -
a formal requirement for government to lay notice of such some ECtHR judgments before Parliament, for the purposes of enabling general Parliamentary consideration.
the Bill of Rights could also use ministerial powers to table a motion allowing for a specific debate, which may culminate in a vote where it is deemed appropriate. This may be useful in an instance where the UK is engaging with the Committee of Ministers of the Council of Europe on a judgment, and where the government wishes to test the temperature of Parliament, either on a proposed course of action to address an adverse ruling, or by holding a vote on a particular issue.
Then a statement of intention appears -"the government intends to include a legislative provision that affirms Parliamentary sovereignty in the exercise of the legislative function, in the context of adverse Strasbourg rulings."
All of this, it is claimed, will show "respect for our international obligations" and "provide a clear and explicit democratic shield to defend the dualist system in the UK by making clear that Parliament, in the exercise of the legislative function, has the last word on how to respond to adverse rulings."
A draft clause to deliver these proposals is at paragraph 11 of Appendix 2
Q. 28 - "We would welcome comments on the options, above, for responding to adverse Strasbourg judgments, in light of the illustrative draft clause at paragraph 11 of Appendix 2."
Impacts -
The government is committed to considering the impact of the policy proposals set out in this consultation document, including on individuals with particular protected characteristics.
The government's initial discussion of potential impacts is at Appendix 3. A full Impact Assessment will follow once the government has considered responses to the consultation.
Q. 29 - "We would like your views and any evidence or data you might hold on any potential impacts that could arise as a result of the proposed Bill of Rights. In particular:
(a) What do you consider to be the likely costs and benefits of the proposed Bill of Rights? Please give reasons and supply evidence as appropriate.
(b) What do you consider to be the equalities impacts on individuals with particular protected characteristics of each of the proposed options for reform? Please give reasons and supply evidence as appropriate
(c) How might any negative impacts be mitigated? Please give reasons and supply evidence as appropriate.
That brings to an end this overview of the consultation. Clearly there is much to think about.
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The proposals go far beyond what the Independent Panel considered to be required and, in some instances, the proposed reforms were not even referred to or discussed by the Independent Review.
The approach to human rights demonstrated by the consultation is in several ways regressive and, if implemented, will make it harder for individuals to bring forward challenges to public authorities. The consultation also contains some more welcome features such as enhancing to some extent the involvement of Parliament. For me, the few welcome features do not overcome the regressive features.
As things appear today it seems unlikely that an actual bill will appear before Parliament until after the summer of 2022 but, of course, we never quite know ! Any bill ought to receive the maximum possible scrutiny from Parliament. In the political arena there will be much to consider about the way in which Parliament approaches this planned reform. For instance, it ought not to rammed through against a tight timetable that limits debate.
Reponses to the consultation have to be submitted by 8 March 2022.
Now where's that last mince pie ........ ?
New Year's Eve 2021
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