Tuesday 28 December 2021

The Government's consultation on Human Rights Act ~ (2)

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)

The consultation:

Chapter 1 The Legacy of Rights in the UK - Chapter 1 starts with

a very debatable proposition - "The UK has protected individual rights and liberties over many centuries."  

To say the least, that is a very selective reading of our national history let alone the history of many countries abroad which were formerly governed by the UK. The consultation paper contains no reference to the major struggles that proved necessary to bring about many of the reforms to domestic law in the UK: struggles such as that to secure the right of women to vote. Rights and freedoms were hard-fought: rarely granted by some benevolent government.

The "over many centuries" claim is bolstered by references to Magna Carta, the Petition of Rights 1628, the Bill of Rights 1689 together with more recent material such as the Reform Acts in the 19th century and the development since the 1960s of anti-discrimination legislation. 

A casual reader could be left with the impression that UK governments were continually acting to improve the lot of individuals but, in practice, they have acted for entirely different reasons including the likelihood of unpopularity leading to possible loss of seats in Parliament, and other pressures including some from international sources.

Membership of the EU brought about numerous beneficial changes to law in the UK in fields such as anti-discrimination and employment law but, as might be expected, this is not acknowledged in the consultation - see, for example, the TUC publication UK employment rights and the EU.pdf (tuc.org.uk).

Chapter 1 also notes how British lawyers helped with the preparation of the European Convention on Human Rights: a process involving a need to "reconcile different countries’ traditions on the nature of rights and the nature of law" (para 22).

Some of the developments to the Convention are noted and a point is made of the fact that there have been various "calls" across the political spectrum for a British Bill of Rights.

The devolution settlements for Scotland, Wales and Northern Ireland recognise the rights in the Convention and devolved institutions may not legislate or act incompatibly with convention rights.  

The consultation emphasises the importance of protecting human rights in Northern Ireland - "It is woven into the terms of the 1998 Belfast (Good Friday) Agreement" which "the government remains fully committed to."   It is hoped that such is the case. The government's commitment will be tested in relation to the difficult problem of so-called "legacy issues" in Northern Ireland -

Law and Lawyers: Northern Ireland ~ important developments (obiterj.blogspot.com)

Command paper (CP498) - Addressing the legacy of Northern Ireland's past - July 2021.

Unsurprisingly, the consultation fails to acknowledge that the Human Rights Act 1998 has brought about any marked improvements to the rights of individuals even though there have been numerous beneficial changes - see, for example:

3 crucial human rights cases of 2018 and why | British Institute of Human Rights (bihr.org.uk)



Chapter 2 The International Context - This Chapter  begins by pointing out that rights could be protected in ways other than by one statute like the HRA. The Chapter gives examples of ways in which rights are protected in other countries but there is no detailed analysis of any - paras. 71 to 82. The ways in which some countries have "incorporated" rights is the subject of paras. 83 to 87. Again, detail is absent. In a similar way, the methods used in some other countries to deal with incompatible law are referred to - paras 88-93.

The main thrust of Chapter 2 appears to be the European Court of Human Rights (ECtHR) which (quote) "has evolved and, thanks in part to the UK's leadership, is continuing to evolve" under the principle of SUBSIDIARITY which has received greater recognition since the 2012 Brighton Declaration.

The ECtHR's "living instrument" doctrine comes under particular attack. The consultation states that it has "no express basis in the Convention". The word "express" is key since the actual wording of the convention does not refer to such an approach. Nonetheless, the ECtHR developed the doctrine for the reasons discussed in an article by Rick Lawson (Professor of European Law at Leiden University) - The Tyrer case and the origins of the evolutive doctrine.  As Lawson notes - "... all Council of Europe Member States, old and new, have expressed their support for the Court and its case-law on countless occasions" with a recent example in the Copenhagen Declaration 2018.

Supported by quotations from Lords Hoffmann and Sumption, the consultation argues that living instrument has enabled the court to impose positive obligations on governments to act in certain ways rather than "merely exercise restraint in interfering with individual liberties" - (para 51). That wording is indicative of a government which sees the ECtHR and the Convention as obstacles to executive power. They appear to prefer a minimalist interpretation with governments only being required to address what Professor Lawson referred to as "the really great evils”.

Chapter 2 finally asserts that the government's proposed reforms will be fully in line with commitments made with the EU under the Withdrawal Agreement, the Northern Ireland Protocol, and the Trade and Cooperation Agreement.

Chapter 3 - The case for reforming UK Human Rights Law - This Chapter of the consultation will be the subject of my next post. Chapter 3 is quite lengthy and, of course, sets out the government's case for reform. 

The government's actual reform proposals are set out in Chapter 4. There are 29 consultation questions together with an Appendix containing draft replacement clauses for section 2 and 3 of the HRA and also a draft clause relating to Parliamentary consideration of "adverse" ECtHR judgments - i.e. those judgments where the ECtHR finds that the UK "has failed to comply with an obligation arising under the Convention."

Continued HERE ...

28 December 2021

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