This week the Government published the long-awaited Independent Human Rights Act Review (‘IHRAR’) report. In stark response to its sensible recommendations, the Government is seeking to replace the Human Rights Act 1998 (‘HRA’) with a new Bill of Rights (‘BoR’). A pragmatic alternative would be to carefully consider and implement the recommendations in the IHRAR report.
By Joanna George
Research Associate, University of Cambridge
Shortly before the new IHRAR report was published by the Ministry of Justice, the Justice Secretary and Deputy Prime Minister, Dominic Raab, announced in The Times that a ‘New bill of rights will deliver a healthy dose of common sense’. As any first-year law student can attest, what ‘a healthy dose of common sense’ means in legal terms is excessively vague. Such vague language contradicts the pragmatic findings of the IHRAR panel which found that, overall, the first 21 years of the HRA has been a ‘success’. Why, then, is Raab proposing the creation of a new BoR?
As noted in the Ministry of Justice’s press release, Raab declared that ‘Our plans for a Bill of Rights will strengthen typically British rights like freedom of speech and trial by jury, while preventing abuses of the system and adding a healthy dose of common sense.’
Key proposals include keeping the UK a party to the European Convention on Human Rights (‘ECHR’) – a convention that some Conservatives wish to break away from – but would provide Parliament with ‘more scope’ when interpreting rulings from the European Court of Human Rights.
This would also ‘give the Supreme Court more ability to interpret human rights law in a UK context’ which would ‘put an end to us gold plating’ decisions by the European Court when incorporating them into UK law (this is likely to mean that section 2 of the HRA, which requires UK courts to ‘take account’ of decisions of the European Court when interpreting Convention rights, will be amended or repealed).
The Government also wishes to ensure that courts take a less expansive approach when interpreting legislation to ensure its compatibility with Convention rights when applying section 3 HRA. The Government wishes to replace section 3 with ‘an alternative provision setting out clearly how to interpret legislation’. The Government argues that, in practice, this will ‘restore a common-sense approach in vital areas such the UK’s ability to deport foreign criminals, like drug dealers and terrorists, who too often exploit human rights laws to avoid deportation.’
Yet such proposals – combined with the Government’s reforms as outlined in the Judicial Review and Courts Bill 2021 – continue to strengthen the role of the Government to the detriment of the rights of individuals and the ability of courts to protect those rights, including ensuring individuals receive an effective remedy when their rights are harmed.
It’s worth noting that the timing of this announcement is significant. Despite the IHRAR reporting its recommendations to the Government back in October, it is only now that the report is being published. The Government had made an earlier commitment to publish its response to the IHRAR by the end of this year. However, against the backdrop of relentless political stories emerging about the crisis of trust in the Government, from the breaking of Covid-19 restrictions last Christmas at Conservative Party HQ to discrepancies about how Johnson paid for renovations at his Downing Street flat, such proposals now seem like an unnecessary distraction.
What is of more concern is the fact that the IHRAR’s report was not made public until the Government’s response was ready for publication. This prevented a public discussion and evaluation of the report’s contents prior to the Government’s response.
If a BoR is to be seriously pursued as provided in the Government’s consultation document, doing so on a cross-party basis would be the most appropriate forum for what could be a substantial piece of legislation. Involving the devolved institutions from the outset will be critical and should not be a mere afterthought if UK-wide proposals, such as trial by jury (which would interfere with Scots criminal law), are to be considered.
In the interim, and as pointed out by Labour’s Shadow Justice Secretary, Steve Reed MP, the crisis of court back logs in the criminal justice system is a more pressing justice concern.
Due regard must be had, however, to the nine coherent recommendations outlined in the IHRAR report which intend to improve the way the HRA operates. This includes putting common law, UK case law and domestic legislation at the forefront to ensure that priority is consistently given to domestic rights protection before considering Convention rights.
Increased parliamentary scrutiny of human rights decisions by UK courts is also put forward – as proposed in a BoR – yet this would be through giving an enhanced role for the Parliamentary Joint Committee on Human Rights.
A subtle, yet notable, recommendation that is worthy of greater attention is that ‘serious consideration’ should be given to educate as well as legislate on human rights, with emphasis on highlighting that human rights belong to everybody and that there is a balance to be struck between such rights and individual responsibilities.
With Government critics claiming that the proposed BoR is muddled and unnecessary, perhaps this is something for the Government itself to proactively engage in before undertaking any further action on reforming human rights law.
Moreover, in the light of this recommendation, there is also a need for real public engagement on any call to change the way in which human rights are protected. It is important that any changes take account of a wide range of views on human rights protections from across the United Kingdom and that changes are not rushed through, particularly in a time when we are still dealing with a global pandemic.