The UK Government Human Rights Act Reform Consultation, published by the Ministry of Justice, was open to public consultation from December 2021 to March 2022. The public consultation paper was over one hundred pages long and included the UK Government’s views on the history of human rights, the laws (both internationally and domestically) and then it outlined their reasons for reform.
Before we delve into the key themes of this consultation it is imperative to note that this consultation did not abide by the core principles of inclusive communication. Furthermore, the release of the easy read version of this consultation was delayed and only offered a mere six weeks to read and respond to such a dense legal document! This task should not be underestimated, the consultation document is full of legal jargon and discusses areas of complex constitutional and international law of which is opinionated based rather than evidence based.
In light of the fact that this consultation paper was over one hundred pages long, our response was in depth and comprehensive. This blog aims to condense and outline the key themes from our response in a more accessible platform.
The common theme throughout the proposed reforms is limiting state accountability: shifting responsibility from the state to the individual despite being in direct contradiction to the very foundation of human rights law. It does so by making misleading statements and offering regressive and divisive reforms. It should also be noted that the majority of the questions were closed questions: a statement that there was a problem and offering two or three reform options of which there was no public consultation on and that often disregarded the findings of Independent Human Rights Act Review(IHRAR).
Throughout this consultation there were many misleading statements and suggestions and epitomised in the proposed reforms of Section(S.) 2 and 12 of the Human Rights Act 1998(HRA).
The government propose to reform S.2 of the HRA which focuses on the relationship between the UK Courts and European Court of Human Rights(ECtHR/Strasbourg). The consultation implies the courts only use ECtHR case law when addressing human rights issues- this is not true. Therefore any reforms proposed to this section are based on this inaccurate evidence. The UK courts refer to common law, UK case law then consult ECtHR judgements. The reform proposal ignores the IHRAR’s finding that there is a good relationship between UK courts and Strasbourg.
One of the proposed reforms of S.2 is to change the ‘duty to take account’ requirement to ‘pay due regard’. In short, the shift from a legal duty to reference ECtHR case law widens the gap in human rights protection and could cause an unacceptable level of divergence. The implication of this is that the scope of convention rights may be narrower for individuals in the UK, limiting access to redress in the UK and leading many to access justice not at home, but in Strasbourg. This is in direct contradiction of premise of reforming the HRA, to ‘bring rights home’. This will also mean that for many individuals, a remedy may only be found in Strasbourg which is not only costly but takes time due to the ever-growing backlog of cases.
Another area of reform that is based on misleading information is the proposals under S.12 of the HRA. The aim of the reform of S.12 is clear, and in fact, it states it in the consultation question itself: to limit the interference with the press and publishers through injunctions or relief. The proposed reasons for reform relied on a highly emotive and controversial case that insinuates that some individuals are less deserving of human rights protection than others(a theme we will touch on later). The consultation makes no attempt to provide the numerous examples of when injunctions have been key in respecting the private life (Article 7) of individuals, particularly those who are vulnerable (children, victims of a crime, victims of abuse etc). Both rights (right to private and family life and freedom of expression) are qualified rights, meaning that the state can interfere with them to balance the protection or fulfilment of another right. The interference, however, must be legal, proportionate and pursuant of a legitimate aim, none of which are outlined in the consultation.
From the reform proposals, it seems that the UK Government wish to expand the scope of our right to freedom of expression by limiting the reasons for press injunctions etc. If we think of it as a set of scales with right to private and family life on one side and freedom of expression on the other, the proposal wants to offer more weight to freedom of expression. However if we cast our minds back to the proposals in the new Police, Crime and Sentencing Bill (part 3), it suggests otherwise. One of the truly concerning areas within the new bill is limiting people’s right to demonstrate/protest by the inclusion of ‘noise triggers’ and criminalising peaceful protesters if they are not compliant with such new measures. The Joint Committee on Human Rights summed up the Bill perfectly: ‘[it] contradicts the very heart of why people gather together to protest –to have their voices heard’.
So, the proposed HRA reform to freedom of expression proclaims to be an expansion of scope of freedom of expression while other proposed legislation limits this right. It is very concerning that the UK Government plans on expanding the rights for some (e.g. press) but limiting the right for others (the public). This is in direct contradiction to one of the core human rights principles, universality.
While it can be said that, the as a whole the proposals for reform are worryingly regressive,e.g framing human rights as ‘burdens’ ‘frivolous’ and ‘spurious’, there are a few key points that stand out.
First, the inclusion of a secondary1 permission stage to access remedy. The consultation proposes that to have access to justice when your human right/s have been violated, you must have experienced ‘significant disadvantage’. This proposal re-introduces an outdated model of ‘proving’ your hardship or suffering to decision-makers. It fails to put a person and an acknowledgement of their experience into legislation or policy making.2 It would be regressive and damaging for the UK Government to introduce another permission stage that requires an individual to ‘prove’ their hardship and then prove that it is ‘significant’. This proposal fails to recognise the experience of the individual and the barriers and potential trauma they have faced and detracts from the fact that human rights are to protect people, human beings.
As I mentioned at the beginning of this blog, the theme of shifting responsibility from the state to the individual is clear throughout the consultation but the government do explicitly confirm their intentions ‘a permission stage would shift responsibility to the claimant’3. Once again this contradicts the very basis of human rights law. It is a state’s responsibility to protect, respect and fulfil its human rights obligations both under domestic and international law. It is not for the individual to have human rights responsibilities.
Lastly, the proposals about reforming positive obligations are once again regressive and misleading in their reasoning . Positive obligations are obligations placed on the state to ensure the protection or fulfillment of your human rights. For example, the positive obligation on the state relating to our right to a fair trial are to have courts, legal aid, judges, a jury if and when necessary etc. The consultation suggests that the state ‘does too much’ and is ‘impositioned’ by ‘costly’ human rights litigation. This is not the case. For example, Special Rapporteur Philip Alston published a scathing report4 on the austerity measures and social security changes made in the UK and reported that the UK Government are failing to fulfil basic economic, social and cultural rights. What Philip Alston’s report demonstrates is that despite the wide scope offered under economic, social and cultural rights,5 the UK Government still falls shorts of meeting these basic human rights. Therefore, to state that the intention of the government is to look at ways to ‘restrict the circumstances in which these obligations are imposed’ is regressive, deeply concerning, dangerous and against international law.
The consultation focused heavily on the ‘burden’, ‘pressure’ or ‘imposition’ that human rights, in particular positive obligations, place on public authorities. This detracts from the very foundations of human rights outlined in the Universal Declaration of Human Rights, that human rights are close to home. Human rights are basic rights and freedoms required to live a life of dignity and respect.
Furthermore, it disregards the fact that positive obligations are used as tools for frontline staff to take action and protected people who may be at risk of serious harm or loss of life (DSD v United Kingdom)6. Without a clear duty, frontline staff will have to navigate through numerous and complex legislation and policies leaving decisions or policy creation at risk of violating human rights7.
The section relating to reforming judicial remedies is not only dangerously regressive but also divisive. It states that some individuals are less deserving of human rights.
The suggestion that certain people are undeserving of their rights or remedy to the violation of their basic human rights is regressive and divisive. No individual should be exempt from human rights protection. These are basic rights and freedoms that every individual requires in order to live a life of dignity and respect. There are noticeable exemptions to this rule, for example if you are found guilty of committing a crime through due processes, the state can interfere in your right to liberty by placing you in prison. These are very important guarantees when interfering with rights, it ensures that state cannot have a draconian rule over the people. To propose that some individuals do not have the same rights as others based on their past history or behaviors unjustifiable, outrageously regressive and against the law.
Interestingly the reason for reform in this area is framed as ‘reducing’ the number of human rights claims which in theory is a welcomed commitment if it is achieved by addressing human rights issues and protecting, promoting, respecting, and fulfilling human rights. It is not welcomed under these present circumstances where it would be achieved by placing more barriers and limiting the amount of claimants who can get access to justice.
This blog has offered a detailed summary of the concerning reforms found in the UK Government’s Human Rights Act Consultation. It has evidenced that through the proposed misleading, divisive and regressive changes to the HRA the state hope to limit their accountability by: changing the legal duty to refer to ECtHR judgements and positive obligations and introducing another permission stage to access redress bases on the type of hardship you faced or your previous behavior. But the impact of these proposals does not only lie within the human rights law sphere, these limitations will also hinder our ability to question and influence other legislative changes that interfere with our rights such as the New Police Crime and Sentencing Bill and the New Nationality and Borders Bill.
If you would like to read further on this subject please read our consultation response here: CEMVO_R4HR_Publication_Reform-merged-compressed.pdf (cemvoscotland.org.uk)
Sources & References:
1 The proposal negates to include crucial information for a respondent-that a permission stage already exists. This is called a ‘merit stage’ that exists for a legal case in the UK. If a case is not actually human rights related or it does not have legal merits, then Court will not let it progress to a full case.
2 For example, after much criticism the Home Office introduced a DSSH model to determining the validity of a person’s claim in relation to asylum claims based on sexual orientation.
3 Paragraph 221 of the consultation document: Human Rights Act Reform: A Modern Bill of Rights – consultation – GOV.UK (www.gov.uk)
4 Statement on Visit to the United Kingdom, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights . Available at: eom_gb_16nov2018.pdf (ohchr.org)
5 Through the margin of appreciation
6 Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents)  UKSC 11 On appeal from  EWCA Civ 64
7 For example, the Scottish Human Rights Commission supported a group of residents in Leith living in poor housing conditions to advocate for their right to adequate standard of living. housing-project-summary-vfinal-june-2019.pdf (scottishhumanrights.com), Eweida and others v. the United Kingdom
May 4th, 2022