Wednesday 29 December 2021

The government's consultation on Human Rights Act ~ (3)

 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 ( - with link to consultation document (123 pages pdf)

This post looks at Chapter 3 of the government's consultation - The Case for Reforming UK human rights law.

A further post will be required to consider the government's actual proposals which are set out in Chapter 4 of the consultation.

* The government's case *

Chapter 3 begins

with an assertion that the government wishes to strengthen the UK's "long tradition of protecting human rights."  The government claims to believe in "the fundamental rights set out in the Convention but believes that the framework for the application of human rights has proved flawed."

Living instrument -

The "Living Instrument" doctrine is first in the firing line (paras 99 to 111) - "Certain problems have arisen as a result of the ‘living instrument’ doctrine, the Strasbourg Court’s concerted attempt to pioneer, expand, and innovate human rights law beyond the rights set out in the Convention."

The government case is set out on the basis of the ECtHR judgment in Abu Qatada v UK (2012) 55 EHRR 1 and the prisoner voting case of Hirst v UK (2004) 38 EGHRR 40.

In Abu Qatada's case, the ECtHR found no violations of Article 3 if AQ was deported to Jordan but did find that Article 6 would be violated on account of a real risk that evidence obtained by torture would be admitted at a trial. In May 2013, AQ agreed to leave the UK if the UK and Jordan agreed that evidence obtained by torture would not be used against him. He was deported from the UK in July 2013.

The government's problem with the Abu Qatada case is that the ruling "opened up the case law to further incremental judicial expansions in the use of Article 6 to frustrate deportation orders, well beyond the terms of the Convention, or previous case law from Strasbourg."

John Hirst was convicted of the 1979 violent manslaughter of Mrs Bronia Burton. He was sentenced to 15 years imprisonment but, having committed further offences in prison, he eventually served 25 years being released in 2004. His criminal conduct was undoubtedly appalling BUT his case at the ECtHR concerned the blanket ban by the UK on prisoners voting in elections. The ECtHR found by a 12 to 5 majority that the UK was in breach of Protocol 1 Article 3. Many in British politics did not wish to reform the UK's position but a resolution was eventually reached. See the discussion at -

Prisoners' voting rights: developments since May 2015 - House of Commons Library (

The government argues that the Grand Chamber "implied into the duty on States Parties to hold free elections, under Article 3 of Protocol No.1 to the Convention, a specific right to vote that must in principle be extended to prisoners."

The government's arguments about Living Instrument extend beyond notorious cases - see paras 107 to 109. "Far from merely applying the Convention, these judicial extensions of human rights have enabled the Strasbourg Court to prescribe domestic principles and rules in a wide range of social policy areas, without any meaningful democratic mandate or accountability."

It has to be accepted that the living instrument doctrine has resulted in considerable controversy but there is also force in the contrary point that it would be quite ridiculous if the ECtHR could not take reasonable account of changes which have arisen as societal attitudes have altered since the early days of the convention and as new technologies (e.g. computing) and new problems (e.g. environmental issues) have arisen. An interesting seminar was held at Strasbourg in September 2021 - please see Rule of Law and Justice in a digital age. It is worth watching.

Section 2 HRA - At para 112, the argument turns to section 2 of the HRA which requires UK courts to "take into account" ECtHR judgments in so far as relevant to the proceedings. "In practice, this led the UK courts to conclude that Parliament had instructed them to keep up with, and match, the Strasbourg Court’s case law, rather than apply the Convention rights in a UK context, and within the margin of appreciation that the Convention allows." It is then noted (at 114) that " ... the courts have retreated a little from this maximalist position" and "the ambiguity of section 2 continues to give rise to legal uncertainty and promote an over-reliance on the Strasbourg case law, at the expense of promoting a home-grown jurisprudence tailored to the UK tradition of liberty and rights."

The Independent Review's position on section 2 is discussed at Law and Lawyers: Independent Review of the Human Rights Act 1998 ~ Post 2 (

Section 3 HRA - At para 116 it is said that the HRA "requires courts to alter the meaning of primary legislation in order to make it compatible with the convention rights, whenever it is possible to do so - (section 3)."  "It is one thing for the UK courts to declare legislation incompatible with human rights, but quite another for them to be required to revise the legislation, in material respects, in order to ensure compatibility without there being any direct or meaningful Parliamentary oversight." It is claimed that these provisions have given rise to a significant constitutional shift in the balance between Parliament, the executive and the judiciary. In effect, creating a process of judicial amendment.

All of that seems to overlook the fact that, under the HRA, the courts do not necessarily have the last word. If the executive is displeased with a court ruling then it is well able to bring forward legislation to amend the law. If the courts issue a declaration of incompatibility it is entirely a matter for Ministers whether to introduce amending legislation or make a remedial order.  

A ‘rights culture’ that displaces personal responsibility and the public interest - 

Its pointed out (124) that many of the convention rights are 'qualified', recognising explicitly the need to respect the rights of others and the broader needs of society. The "increasing reliance on human rights claims has led to a culture of rights "decoupled from our responsibilities as citizens, and a displacement of the wider public interest" (para 125).

The government therefore argues that the behaviour of claimants should be given greater consideration when interpreting and balancing qualified rights (131). Examples are given of cases where, at least in the government's view, the claimant had behaved in some way which ought to be considered when deciding cases. One example referred to is R (MA) v Secretary of State for Justice [2021] EWHC 1266 (Admin).

MA was serving a prison sentence relating to sexual offences. The case concerned contact with another to whom MA was married. MA's claim in relation to prison restrictions on telephone contact and prison visits succeeded but a claim in relation to written correspondence was dismissed.

This aspect of the government's thinking is somewhat worrying. A test of any government proposals will be HOW the courts will be required to take into account the past behaviour of a claimant. It appears that the government's plan is that such conduct will be considered by the court in deciding on any remedy.

Confusion and Risk Aversion - Whilst accepting that public authorities must act within the law and respect people’s human rights, the government argues that sections 2 and 3 of the HRA has given rise " to considerable legal uncertainty, with incrementally expanding interpretations of the scope of certain rights and judicial amendment of legislation." The Rabone case is offered as an example of this - R (Rabone) v Pennine Care NHS Foundation Trust [2012] UKSC 2 - Rabone.doc ( At the time, the case was discussed on this blog -Law and Lawyers: Article 2 Duty on NHS Trust: .... Supreme Court decision (

The government complains that Rabone went further than the ECtHR by expanding the operational duty under Article 2 to voluntary patients as well as detained patients. This placed an obligation upon the hospital which did not exist under previous case law.  There is no mention in the consultation of the facts that Melanie Rabone was allowed on "home leave" from hospital where she was being treated for depressive disorder. She had attended voluntarily.  Lady Hale pointed out that - "A hospital trust, in breach of its duty of care towards its patient, allowed a young woman, who was suffering from a severe depressive episode with psychotic symptoms and had been admitted a week earlier after a serious suicide attempt, to go home on leave for two days. The only support plan was the care of her parents who were not in favour of her being allowed home." The hospital admitted liability in negligence (a tort) but contested the Article 2 claim.

[For more on Article 2 duties see the analysis in R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin) - Popplewell LJ, Garnham J, HHJ Teague QC (Chief Coroner)].

Update 8 Jan 2022:

A further example offered by the government is the obstruction of the highway case of DPP v Ziegler [2021] UKSC 23 where the court's application of Article 10 and 11 "helped protesters to disrupt the rights and freedoms of the majority." [See post on the government's Policing, Crime and Sentencing and Courts Bill].  

The Supreme Court, applying the HRA, noted that the Highways Act 1980 s137 had to be read compatibly with convention rights and that involved considering whether the public authority's interference with the protester's rights was proportionate. If it was NOT proportionate then the protesters had a defence of lawful excuse. The Supreme Court noted the factors relevant to that assessment - i.e. the protester's action was "intended to be, a peaceful gathering,  which gave rise to no form of disorder, did not involve the commission of any offence other than the alleged section 137 offence, was carefully targeted at vehicles heading to the fair, involved no complete obstruction of the highway, and, insofar as the obstruction lasted 90-100 minutes, was of limited duration. The district judge was entitled to take these factors into account in determining the issue of proportionality in favour of the appellants. 

Clearly, the government disliked this protest at a weapons fair being held at the Excel Centre. The sale of weapons to some regimes is highly controversial but is worth £ billions annually - see BBC News 6 October 2020.

The government claims that the HRA has created additional legal uncertainty and costs for public authorities (para 139). Under government plans there will be less scope for ambiguity in interpreting claimants' rights and less scope for judicial amendment of the statutory frameworks (para 140).

Undermining public protection - government argues that public authorities are more likely to find operational decisions challenged and courts "second-guessing their professional judgement exercised under considerable pressure." Threat to Life warnings (previously known as "Osman warnings") - paras 145 to 149) - are said to have added "considerable complexity and expense to ongoing policing operations." In 2019, the four biggest police forces in England issued 770 such warnings which had a considerable impact on police resource.  "Given that, in such cases, substantial police time and effort is engaged in carrying out measures for serious criminals, this displaces the policing resources available for other serious crime perpetrated against law-abiding citizens, which inadvertently skews policing priorities."

See Osman v United Kingdom (2000) 29 EHRR 245 and, in particular, para 116 of the court's judgment. It is far from clear in the consultation document what, if anything, the government plans to do about this.

Government further claims that the extra-territorial jurisdiction has resulted in the actions of troops and military decision makers being subject to human rights challenges even though the Convention was not intended to apply extraterritorially and was never designed to regulate conflict situations. One case put forward by the government in support of their viewpoint is Smith v Ministry of Defence [2013] UKSC 41. The case concerned 3 sets of claims referred to as The Snatch Land Rover claims, the Challenger claims, and a third case brought by Courtney Ellis in negligence and based on various alleged failures on the part of the MoD.

The UKSC unanimously held that, in relation to the Snatch Land Rover claims, the soldiers were within the UK's jurisdiction at the time of their deaths.

The government's case for reform then turns to deportation of foreign national offenders (FNOs). "The Strasbourg Court and UK courts have incrementally expanded the restrictions on deporting serious foreign offenders under Articles 3, 6 and 8. From April 2008 to June 2021, 21,151 appeals against deportation were lodged by FNOs. 6,042 had their appeal allowed at the First Tier Tribunal. Of the 6,042, 2392 had their appeals allowed on human rights grounds. 

The 2392 amounts to approx 11% of the total.

Public policy priorities and decision-making affecting public expenditure has shifted from Parliament to the courts, creating a democratic deficit -

This section of the government's case begins by quotations from Lords Hoffmann and Sumption. Hoffmann referred to the ECtHR "challenging the autonomy of the courts and indeed the Parliament of the UK to deal with what are essentially social welfare questions involving budgetary limits and efficient public administration." It can hardly be said that Hoffmann admired the ECtHR. He saw it as going beyond "its original modest ambitions" and as a court seeking to impose6" Voltairean uniformity of values upon all member States." [This is all said in an article published in Modern Law Review - Human Rights and the House of Lords (1999) 62 MLR 159. The article can be found either in  good law libraries or by payment HERE.  It seems, at least to me, wrong for a PUBLIC government consultation to reference such articles given that they are not readily available to the public].

The quotation from Lord Sumption appears in a lecture he gave in Glasgow in 2015 which is publicly available thanks to the Supreme Court's policy of publishing on its website lectures given by its justices - Lord Sumption gives the James Wood Lecture, University of Glasgow (  Sumption found that the problem with Article 6 (Right to a Fair Trial) was the the ECtHR had shown a desire to transform the Convention into an instrument of European public order. "This has resulted in the application of Article 6 in areas well beyond its core values, which appear to have little to do with the fairness of proceedings or even access to a court."

Such articles and speeches by senior former or serving judges are manna from Heaven for the government although the government goes on to claim (154) that it should be restrained by the protection of fundamental rights. But the " incremental expansion of rights into novel areas ... creates a democratic tension with the prerogative of elected representatives to determine what may amount to finely balanced questions of public policy."

"Such issues also involve questions about the allocation of finite public funds which require debate at a political level by elected representatives, accountable to taxpayers. Litigation by lawyers in a courtroom is often a narrow prism within which to settle such inherently subjective and value-driven matters of public interest."

Perhaps in an attempt to get the devolved administrations "on side", the consultation then states that the " ..... the principles at stake are equally important in respecting the democratic role of the devolved legislatures to allocate resources or make policy within their competence."

Examples are given:

SG [2015] UKSC 16 - concerning the benefit cap and single parents

Daly [2016] UKSC 58 - cap on housing benefit

but a "welcome ruling" is said to be SC [2021] UKSC 26 which was a challenge to the 2 child limit in the individual element of Child Tax Credit. Parliament decided that the disproportionate impact of the two child limit on women was outweighed by the importance of achieving its aims. There was no basis on which the Court could properly take a different view.

The child tax credit limit was extensively debated in Parliament including scrutiny by the Joint Committee of Human Rights.  CPAG | All Kids Count

The government argues that the decision in SC "reinforces the case for reform so that Parliament can clarify and codify the appropriate test in law."

Other cases referred to in the government's case are:

P v Cheshire West and Chester Council; P and Q v Surrey County Council [2014] UKSC 19 - considered whether various placements of mentally ill individuals with foster carers or in small homes constituted a deprivation of liberty under Article 5 of the Convention, even though there was no suggestion that the placements were not in the best interests of the individuals or that they would have wanted to live elsewhere. The Court concluded that it would be a breach.

The Cheshire West decision actually clarified the test and definition for Deprivation of Liberty for adults who lack capacity to make decisions about whether to be accommodated in care.  It brought more individuals under the protection of the DoLS procedure.

Manchester City Council v Pinnock and others [2001] UKSC 6 - the Court overrode Parliament’s intention, as set out in the Housing Act 1996, that the court must make an order for possession unless the procedures had not been followed. This increased the uncertainty around the eviction process for local authorities seeking to remove anti-social tenants in England and Wales.

R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57

R (Baiai and others) v Secretary of State for the Home Department [2008] UKHL 53,

Re S (Minors) and others [2002] UKHL 10 - This case concerned care orders under the Children Act 1989. In attempting to make the process compatible with the rights of parents to respect for private and family life, the Court of Appeal introduced a new procedure after the court had made a care order. This involved ‘starring’ milestones in a care plan: if not reached on time, the local authority had to inform the guardian who could then reapply to court. The House of Lords (as the then final appellate court) later overturned the decision, acknowledging that the Court of Appeal had crossed the line into amendment rather than interpretation.

[It was widely thought at the time that the Court of Appeal had gone too far with "starred care plans" - an idea firmly rejected on appeal to the House of Lords. The Children and Families Act 2014 altered, and limited, the court's role regarding scrutiny of care plans].

Government claims that in such areas the courts have expanded the scope of human rights from protecting individuals to prescribing how public services must be delivered, with significant operational and financial implications.  The growth in such obligations has come without proper democratic oversight from Parliament. A democratic deficit.

Government's summary - 

The government claims that it wants a "a clearer separation of powers, to allow the voice of everyone in our society to be heard through their elected representatives in answering inherently difficult and subjective questions about public policy and public spending" and also to ensure that, when people claim rights, there is a genuine balance struck between their responsibilities, the rights of others, and the broader needs of our communities."

Comment -

Given the fairly modest reform proposals in the Independent Review, it is plain that the government's case amounts to argument in favour of further enhancing executive power. The role of the courts will be more constrained by legislation even though, as the Independent Review noted, the courts have generally taken a cautious approach to their responsibilities and, in some areas, have retreated from earlier case law.

Nothing in either the Independent Review or the Government Consultation notes the degree of executive control over the activities of Parliament but this is a practical reality.  [The timetable of both Houses is dominated by the government's constantly large legislative agenda].

In response to many of the court decisions - (whether ECtHR or UK courts) - disliked by the government there could have been both parliamentary debate and, if thought necessary, amending legislation. 

Ultimately, the executive is therefore in a strong position even if its scope for action is trammelled to some extent by international obligations under the Convention and by the views of the devolved administrations in the UK. If the present plans come to fruition the government's position will be strengthened. to the detriment of the citizen and probably also to the UK's international standing in relation to human rights.

The next post will look at the government's actual proposals.

Continued HERE ...

29 December 2021

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