By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
The current Conservative Government promised in its manifesto to ‘update the Human Rights Act’ to ensure a ‘proper balance’ between human rights, national security and effective government. The Government commissioned an Independent Human Rights Act Review (IHRAR). Their report was published in December, alongside an executive summary of its recommendations. The Government also published their response to the IHRAR report. This response was accompanied by a consultation exercise, initiating a further review of the Human Rights Act.
This post will outline the Government’s direction of travel. In future posts we will look at each of these specific claims and ask whether the case for reform has been made out and, if so, whether the proposed changes will provide a better, or worse, protection of human rights.
Britain or Europe?
The Human Rights Act 1998 (HRA) provides the main – though not the only – means through which human rights are protected in the UK. The Act is the way in which the UK incorporates the European Convention of Human Rights (ECHR) into domestic law. We often refer to these as ‘Convention rights’. This is a different Treaty from the treaties that govern the European Union.
The fact that the UK has left the EU therefore does not change the fact that it is bound by the ECHR. The ECHR is designed to protect a series of human rights. It also enables individuals to go to the European Court of Human Rights in Strasbourg to protect these rights. States who have signed the ECHR Treaty are bound in international law to comply with decisions addressed to them by the European Court of Human Rights.
The HRA enables individuals to protect their rights in UK courts. It is unlawful for a public authority to act contrary to Convention rights, unless they are required to do so by an Act of the UK Parliament. All Acts of the UK Parliament must be read so as to be compatible with Convention rights, so far as it is possible to do so. When this is not possible, courts may issue a declaration of incompatibility.
This declaration indicates that legislation is contrary to Convention rights. But it does not affect the legal validity or effect of legislation of the UK Parliament declared incompatible with Convention rights. The Scottish Parliament, Senedd Cymru (Welsh Parliament) and the Northern Ireland Assembly do not have the power to legislate contrary to Convention rights. Their legislation can be struck down if it contravenes Convention rights.
The Government is not recommending that the UK leave the ECHR. However, it is concerned that UK courts are prioritising Convention rights, as interpreted by the European Court of Human Rights. This concern arises because of section 2 of the Human Rights Act 1998, which requires UK courts to ‘take account’ of decisions of the European Court of Human Rights. The Government believes that this may mean that UK courts do not develop a sufficiently ‘British’ protection of rights. This may mean that many in the UK do not really understand what rights they have.
To remedy this, the Government thinks it may be better to ask UK courts first to look at how domestic law – legislation and the common law – protects rights before looking to the Convention rights. It also wants to introduce rights that are not specifically set out in the Convention, such as the right to a fair trial. It also recommends that the UK courts should provide a stronger protection of freedom of expression than is found in decisions of the European Court of Human Rights, particularly when freedom of expression is restricted to protect the right to privacy.
Parliament or Courts?
The Government also states that its measures will ‘restore Parliament’s role as the ultimate decision-maker on laws impacting the UK population’. The concern is not just that decisions on rights are taken by European as opposed to British institutions, but also that there is an imbalance of power between the courts and Parliament. The Government is concerned that, when courts use their power to interpret legislation to ensure its compatibility with Convention rights, they are contradicting the will of Parliament as set out in legislation.
In its consultation document, the Government suggests two possible ways of modifying the powers of the court. The first possible change is to reduce the extent to which courts can interpret legislation to protect Convention rights. Rather than doing so whenever it is possible, instead courts should ensure that any interpretation is consistent with the wording of legislation and its purpose.
The second possible change would add in a further element. It would also limit when courts can interpret legislation to protect Convention rights. Rather than requiring courts to interpret all legislation so as to protect Convention rights, the Government suggests that this could be limited, so that courts can only interpret legislation to protect Convention rights when the legislation was ambiguous.
In other words, if it were possible to interpret legislation in different ways, one of which was compatible with Convention rights and the other of which was not, the courts should interpret legislation so as to be compatible with Convention rights. But, if the legislation was clear and only had a meaning that was not compatible with Convention rights, courts would not be able to interpret this in a manner compatible with Convention rights.
More common sense?
The Government is also concerned that decisions of the courts designed to protect rights can prevent effective Government. In its consultation document, it gave examples of cases where individuals tried to rely on Convention rights, but when it was clear that these claims were not going to succeed. Even though the courts did decide these cases in favour of the Government, the concern remains that this takes time and money to defend these spurious cases. The Government suggests, therefore, that there should be a permission stage for human rights cases. This stage would require an individual to prove that their case was not frivolous. Courts would be empowered to remove these frivolous claims at an early stage, saving time and money.
The Government also thinks that some decisions from the European Court of Human Rights have hindered their ability to govern effectively. In his statement, Dominic Raab, Deputy Prime Minister, Lord Chancellor, and Secretary of State for Justice, mentioned the need to ensure that the UK government can deport drug dealers and terrorists, whom he believes exploit human rights laws to avoid deportation. He also mentions that the ability of the Government to tackle forced marriages.
In the consultation document, the Government is concerned about when Convention rights apply to UK nationals acting outside the UK, particularly the armed forces. This document is also concerned about how proportionality is applied. Many Convention rights allow for restrictions to be placed on rights to achieve a legitimate aim when this restriction is necessary in a democratic society. This is determined through a test of proportionality. Courts ensure that any restriction on rights is as small as necessary to achieve the legitimate aim. The Government is concerned that courts apply this too strictly, preventing common sense decisions.
Future posts will explore these themes further. They will ask whether the Government has provided a good argument for change, as well as asking whether any such change is a move in the right direction.
- Richard Clayton QC has written a series of posts on the reforms. You can read them here, here, and here.
- Alison Young appeared on a RightsUp podcast discussing these reforms. You can listen here.
- Lord Carnwath will be talking about these reforms on Tuesday 8 February. You can register for his webinar here.