Human Rights Act Reform

This is a House of Commons Committee report, with recommendations to government. The Government has two months to respond.

Thirteenth Report of Session 2021–22

Author: Joint Committee on Human Rights

Related inquiry: Human Rights Act Reform

Date Published: 13 April 2022

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Contents

1 Background to Human Rights Act reform

1. On 14 December 2021, the Government published a consultation paper, Human Rights Act Reform: A Modern Bill of Rights.2 The foreword described the consultation as marking “the next step in the development of the UK’s tradition of upholding human rights.”3 Successive Governments since 2007 have suggested that the Human Right Act 1998 (HRA) should be either reformed or replaced with a British Bill of Rights. However, no Government has yet introduced legislation to amend the Act.

Previous proposals to reform the HRA

2. Plans to reform or replace the HRA have evolved over the past decade. The 2010 Conservative Party Manifesto committed to replacing the HRA with a Bill of Rights.4 In 2012, under the Coalition Government, the Commission on a Bill of Rights considered whether there should be a Bill of Rights. The Commission produced a divided report, reflecting disagreement on the issue between the coalition partners.5

3. The Conservative Party’s 2015 manifesto committed to “scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain”.6 In the 2015 Queen’s Speech, the Government said it would bring forward proposals for a British Bill of Rights.7 However, those proposals were not introduced. The 2019 Conservative Manifesto committed to wide-ranging reforms of aspects of the constitution, stating “[w]e will update the Human Rights Act” to “ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.8

The Independent Human Rights Act Review

4. The Government launched an Independent Human Rights Act Review (IHRAR) in December 2020, chaired by Sir Peter Gross (a retired Court of Appeal judge). The terms of reference tasked the Panel to consider: (1) the relationship between the domestic courts and the European Court of Human Rights (ECtHR); (2) the impact of the HRA on the relationship between the judiciary, executive and Parliament, and (3) whether there is a case for changing the way in which the HRA applies outside the UK.

5. The Panel submitted their findings to the Government in Autumn 2021 and the final report was published on 14 December 2021. The report suggested very minor changes to the HRA (discussed in more detail below), noting that “the vast majority of submissions” it received “spoke strongly in support of the HRA.”9

The Government consultation

6. The Government’s consultation was published on the same day as the IHRAR report and sets out proposals to replace the HRA with a Bill of Rights. The Government are not proposing that the UK withdraws from the ECHR, which was ratified by the UK in 1951.10 The consultation states that the proposals are designed to:

  • make sure our common law traditions and Parliamentary sovereignty are respected, and strengthen the role of the UK Supreme Court;
  • provide a sharper focus on protecting fundamental rights;
  • prevent the incremental expansion of rights without proper democratic oversight;
  • emphasise the role of responsibilities within the human rights framework; and
  • facilitate dialogue with Strasbourg, while guaranteeing Parliament its proper role.11

7. The proposals also seek to address more specific issues, including what the Government perceives to be a longstanding difficulty deporting foreign national offenders. It is suggested the Bill of Rights would also give greater weight to what are described as “quintessentially UK rights” such as freedom of speech and trial by jury.12

8. The consultation states that it is informed by IHRAR’s findings. However, it does not set out a response to the review’s findings, nor does it seek views on its recommendations.13 In his evidence to the Justice Committee, Sir Peter Gross, Chair of the IHRAR Panel, said “you cannot put [the IHRAR report] down here, the Government’s consultation down there and say that the two work together.”14 It is unfortunate that the Government has not responded in full to IHRAR’s comprehensive report.

9. The proposals in the Government consultation are far reaching, complex and in some instances, views are sought on numerous options for reform. Given the constitutional importance of the HRA, any eventual legislation reforming or repealing it should be laid as a draft bill to enable pre-legislative scrutiny.

Key principles of human rights law

10. There are three principles of human rights law relevant to the Government proposals which are worth recalling at the outset of this report, as any human rights framework should necessarily be judged against these:

  • human rights are universal (see chapter 8);15
  • human rights are fundamental and have a special place within the domestic and international legal order (see chapter 5);16 and
  • human rights need to be able to evolve and adapt to new and changing circumstances over time, as reflected in both common law principles and the living instrument doctrine (see chapter 3).17

We will address these when they arise in the analysis, but it is only appropriate to reiterate the fundamental importance of these principles from the outset.

Our previous work and current inquiry

11. We launched our own inquiry into the Government’s Independent Human Rights Act Review in January 2021. We wanted to know more about how the Act was operating for those who rely on it when they deliver public services. We received 82 written submissions and took oral evidence from 16 witnesses. We published our report on 23 June 2021 and concluded that, based on the evidence we heard, there was “no case” for changing the HRA.18

12. In January and February 2022, the Committee held three oral evidence sessions considering the Government consultation. The Committee will continue to scrutinise the Government’s proposals as they develop.

2 Successes of the Human Rights Act and the case for a Bill of Rights

Enforcing human rights prior to the Human Rights Act

13. Prior to the HRA coming into force, an individual in the UK could enforce their rights under the ECHR, but only by petitioning the ECtHR directly. However, as the White Paper that preceded the Human Rights Bill said, “For individuals and for those advising them, the road to Strasbourg is long and hard. Even when they get there, the Convention enforcement machinery is subject to long delays”.19 It added that, at that time, it took an average of five years to exhaust all domestic remedies and cost an average of £30,000.20

Enforcing human rights in the courts after the HRA

“Bringing rights home”

14. One of the most important successes of the HRA is that it has enabled individuals to enforce their rights before the domestic courts or has “brought rights home”.21 As Caoilfhionn Gallagher QC, barrister at Doughty Street Chambers, told us the “tortuous process” of taking a case to the ECtHR “is something that has been … reduced and minimised with the Human Rights Act.”22 In his evidence to the Committee, Lord Mance, former Justice of the Supreme Court, gave examples where the HRA and ECHR had led to improvements in human rights protection in UK law. These included, “the removal of the Home Secretary’s right to set the tariff for [those with life sentences], [ … ] the removal of sentencing discretion from the Executive, the ending of detention without trial of aliens suspected of terrorist involvement, the lifting of the ban on homosexuals in the Armed Forces or, in a civil law context, the development of a law of privacy.”23

Reducing number of cases brought before the ECtHR

15. The HRA has led to a closer alignment between the ECtHR and UK courts when applying the ECHR. As Caoilfhionn Gallagher QC told us, this has meant the two have “moved towards speaking the same language.”24 This has, in turn, led to a reduction in the number of cases brought against the UK before the ECtHR. During our The Government’s Independent Human Rights Act Review inquiry, the ECtHR told us that, since 2017, the number of cases brought against the UK per 100,000 inhabitants was the lowest amongst the 47 states signed up to the ECHR.25 The number of cases in which the UK are found to be in breach of the ECHR has also reduced. Out of the 284 cases lodged against the UK in 2020, the ECtHR found a violation in only two.26

UK influence on ECtHR case law

16. The consideration of ECHR rights by domestic courts has enabled the UK courts to influence ECtHR case law. Lord Mance told us that the “United Kingdom courts have been, and are increasingly, successful in influencing Strasbourg jurisprudence.”27 The IHRAR report also highlights numerous cases in which the UK courts and ECtHR have “learned from and influenced each other”.28

Enforcing human rights out of court

17. The HRA has brought the rights guaranteed under the ECHR to the foreground for public authorities. During our The Government’s Independent Review of the Human Rights Act inquiry, various witnesses, including an NHS Trust, the National Police Chief’s Council and the British Association of Social Workers told us the HRA has placed human rights at the centre of decision-making.29 Sarah Dallal, Equality and Diversity Lead at Tees, Esk and Wear Valley NHS Trust told us the HRA had given her trust “an objective legal framework that we can use when we are making complex clinical decisions”.30 Many NGOs who responded to our previous inquiry (and IHRAR) also shared positive stories of those who had used the HRA to vindicate their rights out of court. For example:

  • The British Institute of Human Rights (BIHR) told us about Beth, who left her abusive partner and was homeless as a result. Her local authority refused to rehouse her. Beth’s social worker, Karen, attended a BIHR training session and was then able to talk about how not providing safe accommodation could breach Beth’s right to be free from inhuman and degrading treatment (under Article 3 ECHR) due to the risk of further abuse if she returned to her ex-partner. The housing team looked again at their decision and decided to rehouse Beth.31
  • The Law Centres Network told IHRAR about ‘Archie’ who is paralysed from the neck down and had to sleep in the living room, because the doors were too narrow for his wheelchair. The council assessed him and, despite concluding that if he had suitable accommodation he could be cared for at home, they offered him a place in a nursing home—which would have separated him from his wife and primary carer. The Law Centre persuaded the council to reconsider, relying on Archie’s right to family life under Article 8 ECHR.32

Areas for improvement

“Patchiness” of a human rights culture in public authorities

18. In its 2018 Enforcing Human Rights report, the JCHR stated that the degree to which there was a human rights culture in public authorities was “patchy” as “it depends on awareness and training of public officials, which can vary according to the public authority”.33 In her evidence to us, Elizabeth Prochaska, barrister at 11KBW, went further and stated that there had been a “serious failure” to ensure people could vindicate their rights out of court.34

19. We are disappointed that the Government consultation does not consider how the enforcement of human rights other than by court action could be strengthened. The Government must look at ways to spread best practice in human rights compliance across the public sector including through training and information programmes.

Public ownership of rights and civic education

20. The IHRAR Report noted that in some quarters there was a negative perception of the HRA , which is “disproportionately fuelled and ventilated by negative media and political coverage.”35 The report said work needed to be done to challenge negative perceptions and “increase the sense of public ownership of the HRA.”36 To that end the report recommended “serious consideration is given by Government to developing an effective programme of civic and constitutional education in schools, universities and adult education.”37 In his evidence to us Professor Adam Tomkins, John Millar Chair of Public Law, Glasgow University, asked:

[W]ho could possibly rationally and sensibly argue against civic education in human rights and civilities? That is a rather preposterous proposition, is it not?38

21. We agree. The Government has not yet confirmed, however, whether they intend to implement IHRAR’s recommendation.

22. We support IHRAR’s conclusion that the Government should develop an effective programme of civic and constitutional education. This should be implemented without delay by the Department of Education, with support from the Ministry of Justice if necessary.

Do we need a new Bill of Rights?

23. The Government’s consultation presupposed reform to the HRA, seemingly by replacing it with a Bill of Rights, despite there being no intention of changing the content of human rights protected under Schedule 1 of the HRA. Lord Carnwath, former Supreme Court judge, explained in a lecture on Human Rights Reform that the purpose of a new Bill of Rights is unclear:

a proposal to replace, in substantially the same language, a code which has been part of our law for more than 20 years requires strong justification. Either it means the same thing, in which case what is the point? Or it does not, in which case we can expect a long learning process through the courts to find out what it does mean.39

24. We asked the Minister, Lord Wolfson of Tredegar QC, Parliamentary Under Secretary of State, why the Government were considering a new Bill of Rights. He told us that, along with some potential changes to specific sections of the HRA, they were consulting on the right to jury trial—a right that isn’t explicitly included in the Convention rights.40 However, as we conclude in chapter 9, this right “would have no obvious legal significance” and its proposed inclusion appears to be symbolic. As such, it does not seem a particularly compelling case for disposing of an established system of rights protection, with all the cost and uncertainty that upheaval would entail. We acknowledge that the Government is additionally consulting on some more detailed sectoral proposals (e.g. in relation to deportation), however we note that such sectoral proposals are not well-suited to inclusion in a Bill of Rights. The quality of fundamental human rights is that they are principles that can be applied through the ages. Specific measures detailing particular rules relating to deportation might therefore best be addressed in a subject-specific Act rather than in any eventual Bill of Rights; their inclusion in a Bill of Rights would appear to weaken the whole nature of the document.

25. Moreover, as Schona Jolly QC, barrister at Cloisters Chambers, set out, the usual purpose of a Bill of Rights is to strengthen rights protection, but this doesn’t seem to be the objective of the Government consultation:

if we are changing it because we want a Bill of Rights, presumably the purpose of a Bill of Rights anywhere in the world [ … ] is to strengthen rights protection. The sense you get from this consultation is that what is hoped to be achieved is a weakening of protection [ … ] that is hugely problematic in the context of a Bill of Rights.41

26. A Bill of Rights should be designed to strengthen, not weaken human rights protection. We see no real case for changing the HRA and little benefit of a rebranding exercise. What might be preferable is more political leadership in championing respect for human rights as a core part of our constitution and values. The Government should consider very carefully whether there is a compelling case for substantial reform, given the upheaval, legal uncertainty and cost that a new Bill of Rights would involve.

3 Section 2 HRA and the Courts

The relationship between the UK Courts and Strasbourg: Section 2 HRA

27. Section 2 HRA provides that UK courts “must take into account” relevant judgments of the ECtHR, but they are not bound by those judgments. Section 2 is the main formal link between the caselaw of the ECtHR and the enforcement of human rights in the UK.

28. The Government has proposed two options in relation to section 2 HRA. Option 1 would establish free-standing rights in the Bill of Rights, which would mirror the ECHR rights but would explicitly state that they are not to be construed as having the same meaning as those rights in any international treaty or in previous caselaw. It therefore seeks to sever the link between the rights and how they have been applied over the last 70 years. The rights would thus fall to be interpreted distinctly, potentially requiring a significant body of caselaw to be built up to do so.

29. Option 2 would maintain the link with the Convention, but would seem to encourage a more textual approach to interpretation that draws more from an understanding of the ECHR that might have been assumed to be in the mind of the people negotiating the ECHR in the late 1940s or signing it in 1950, rather than one based on how the application of human rights principles has developed since then to fit modern societal circumstances.

30. We considered the impact of section 2 HRA in detail, as did the IHRAR.42 We both found that the requirement in section 2 HRA for UK Courts to “take into account” relevant case law of the ECtHR helped to ensure that rights were enforced and to avoid unnecessary and costly litigation in Strasbourg. We also both considered that there was a very healthy state of both formal and informal judicial dialogue between the ECtHR and UK judiciary. Section 2 is of central importance to the “judicial dialogue” between UK Courts and the ECtHR, by enabling them to speak the same language. This means that the ECtHR can more readily understand the methodology and reasoning adopted by UK courts when applying human rights, and in consequence the ECtHR can adopt a lighter-touch approach when reviewing the application of Convention rights in UK cases. As such, section 2 HRA plays an important role in the UK being able to benefit from the full extent of the margin of appreciation.

The Government’s proposed alternatives to section 2 HRA

Is there a problem with section 2 HRA?

31. In the past concerns have been expressed as to whether the way section 2 HRA was being applied by the UK Courts went too far in effectively requiring UK Courts to follow ECtHR caselaw. This concern seems to be part of what is driving the Government’s concerns in relation to section 2, that perhaps the section 2 caselaw is still uncertain and that, as the Minister put it, may “ebb and flow”.43 However, it is now well established that there is no duty on the courts to follow ECtHR caselaw and this is an area where the caselaw is settled, therefore concerns about the section 2 case law being too restrictive, or being in a state of ebbing and flowing would appear to be unfounded.44 Moreover, as Dr Hélène Tyrrell, lecturer at Newcastle University, explained “the duty in section 2 can also act as a brake in some respects on an expansive interpretation of rights, which seems to be at the heart of the concerns that the Government proposals put into writing”.45

32. As Professor Tomkins noted, our human rights law is “loosely tied, but not too tightly tied, to the jurisprudence of the Strasbourg court [ … ] That is broadly where we have got to over the last 20 years, and we should probably stay there.”46 Lord Mance, noting the lack of clarity in the Government’s proposals as to whether they want a more autonomous human rights system in the UK, or merely one that departs from ECtHR caselaw more often in favour of the Government, concluded, “I do not really think there is anything wrong with the present formulation. Equally, though, if you changed “must” to “may”, it would not make much difference”.47

33. Section 2 HRA plays a crucial role in ensuring that UK judges have regard to matters that are relevant to cases before them, without unduly constraining them in their deliberations. It thus plays a vital role in ensuring that UK reasoning is fully understood by the ECtHR and, therefore, that the UK is accorded the full margin of appreciation available. It also facilitates a very healthy state of judicial dialogue, thus enabling UK judicial reasoning to have a significant impact on ECtHR reasoning. It also means that our courts take the action necessary to ensure that UK cases do not need to end up in Strasbourg. As such, section 2 HRA should be retained and we do not see any need to amend it.

The application of human rights principles needs to be sufficiently flexible to stand the test of time

34. Both of the Government’s proposed options broadly seek to remove the link between the interpretation of Convention rights from ECtHR case law as it has been adapted to evolving societal circumstances over the last 70 years. The options would thus risk a situation whereby the UK courts’ application of human rights protected under the ECHR was less predictable and where there was more of a disconnect from the way that human rights are generally accepted as applying to the challenges of society today.

35. The application of the law necessarily adapts and evolves over time to be applied to new and evolving contexts. This is one of the great advantages of the common law. As Professor Tomkins set out:

The common law is a living, breathing, moving instrument that changes with the times and changes, hopefully, in accordance with prudence and caution. It is a small-C conservative animal, it seems to me, and large-C Conservatives should welcome that.48

36. Such an approach is similarly taken to the application of human rights to changing circumstances—often known as the ‘living instrument’ doctrine. Professor Alison Young, Professor of Public Law, University of Cambridge, and Dr Tyrrell, explained to us that “The ‘living instrument’ interpretation of Convention rights provides that the scope of the Convention evolves over time, taking into account evolving social conceptions common to the signatory States.”49 As Lord Mance explained in his evidence to us, “Any instrument addressing rights (or responsibilities) must be read in the context of circumstances and attitudes as they change from time to time.”50 As such it is clear that such an approach is not unique to the ECHR but is necessary for any instrument setting out rights and responsibilities.

37. Professor Young and Dr Tyrrell explained that the concept of a “living tree” approach to rights interpretation predates the ECHR and is recognised beyond European legal systems, having been referred to in the 1930s in a Canadian constitutional case which described the Canadian Constitution as “a living tree capable of growth and development”.51 Indeed, as Professor Young pointed out, the drafters of such instruments often only “reached a broad agreement” over what they thought the right is, and recognised that “as time progresses that might evolve, that might change.”52

38. As the Government’s consultation document notes, the doctrine has been applied in cases relating to the prohibition of homosexuality in Northern Ireland53 and corporal punishment as part of criminal penalties in the Isle of Man.54 Both such cases seem entirely in line with a common law approach to rights and we cannot see anything to commend revisiting these rulings.

39. The Government’s proposals seem to suggest that the application of human rights rules and principles should be fixed in time—which, in the case of the ECHR, would be when it was negotiated in the late 1940s and signed in 1950.55 However, human rights laws and principles should be applied to the needs and developments in modern society. As Schona Jolly QC told us, “you have to have a living instrument to recognise the sorts of harms that our population will now face. A Bill of Rights has to reflect that”.56 We share Dr Tyrrell’s view that “There is something very odd about proposing a modern Bill of Rights that would be constrained with respect to giving effect to the rights as recognised some half a century or so ago.”57 We also agree with Professor Young, that a return to the rights as applied in the 1950s is “not necessarily [ … ] where people actually want to go.”58

40. The Government has reaffirmed its commitment to both the Convention and to the rights protected under it, and yet, its proposals would disconnect the living instrument doctrine from the application of human rights protections in the UK. However, remaining a signatory to the ECHR necessarily implies consenting to the living instrument approach to interpreting Convention rights. There is therefore a mismatch between what the Government set out to focus on in IHRAR, its stated commitment to the ECHR and the rationale underlying some of its current proposals.59

41. The Government’s proposed approach would run counter to the common law tradition as well as to the commitment to remaining compliant with the protections in the ECHR.

42. An approach disconnected from the way that Convention rights fall to be applied today would likely mean that the ECtHR will be unable to accord the UK the wide margin of appreciation and trust in its processes as it does at present under the HRA, which in turn will require a greater degree of ECtHR intervention and likely adverse judgments against the UK.

43. The approach to applying human rights principles needs to be sufficiently flexible to stand the test of time. Human rights law must be able to evolve and adapt to changing circumstances. Disconnecting the application of human rights from the way they have been applied to modern societal circumstances by the relevant caselaw of the UK Courts and the ECtHR will not benefit people in the UK. There is no place in a modern Bill of Rights for an approach which would give effect to rights as they would have been understood and applied to a 1950s society. Such a premise is not consistent with the UK’s human rights obligations, the nature of fundamental human rights, or the nature of the common law.

44. If the impetus underlying the Government’s concerns relates to the application of human rights in a specific context, then, as Lord Mance underlined, any tensions with the Convention are best served by working with the Convention system:

Viewed as a whole, however, the Convention and its jurisprudence are a force for good internationally and domestically—a view which the Government is not understood to challenge, since it does not intend any fundamental change at either level [ … ] any points of friction can only be forestalled or addressed to the extent that this can be achieved by working with the ECtHR, as the Brighton/Copenhagen process has done, and influencing the ECtHR, as UK domestic court decisions undoubtedly do.60

45. If, following engagement with stakeholders and relevant national and local institutions, the UK Government considers that the way that specific rights are applied merits further reflection, it should engage with international partners in discussions about those issues rather than seeking a unilateral approach when it comes to the protection of basic, fundamental human rights.

Using different sources to interpret rights

46. The two options in the Government’s consultation paper proposals on section 2 seem to encourage UK Courts to look to a number of different sources—including a number of different international sources—when interpreting rights. Lord Wolfson highlighted the advantages of such an approach in his evidence to us.61 However, the UK courts can already have regard to any sources they consider relevant or useful to their deliberations, such as caselaw from Canada or Australia, and nothing in section 2 prevents them from doing so. Moreover, it is unclear why (as seems to be suggested in option 2) caselaw from common law jurisdictions applying potentially quite different rights should be preferred over caselaw from neighbouring countries who have the same human rights commitments as we do.

47. The Courts in the UK are not, and should not, be constrained in their ability to rely on relevant or useful sources for interpreting human rights obligations, including international sources. To the extent that the options proposed by the Government seem to be encouraging or enabling the courts to look at such sources, they would seem to be unnecessary. To the extent that they seem to be unduly prescriptive in setting out the methodological approaches to be applied by the judiciary, they risk interfering unnecessarily with the judicial function and should be avoided.

Prioritisation of rights

48. The IHRAR Panel suggested a change to the sequencing of rights consideration, so that UK Courts should first analyse rights under UK statute law, the common law and UK case law, before moving onto a Convention rights analysis.62 It is therefore worth considering the possibility of increasing the role for common law fundamental rights.63 It is certainly true that more might be done to improve the visibility and accessibility of common law fundamental rights—as Professor Young pointed out “we do not know what the common law rights are in the same way that we know a clear list of convention rights”.64 Moreover, there may be valid questions to be explored as to how actionable, and therefore enforceable, many common law fundamental rights are at present.

49. There are practical concerns that prioritising consideration of common fundamental law rights before considering ECHR rights might be more problematic than it first seems. A two-stage process would double the time and, therefore, the cost of litigation. As Lord Mance explained:

It strikes me as a rather odd and clunky interference with court procedure, with actual judicial activity: “You shall consider first this before considering that”. That is not the way the courts operate, and it could be very questionable sometimes. For example, if a point of common law is very uncertain, do you have to compel the lawyers to argue it out over two days when there is an obvious convention point? That would be hugely expensive.65

50. Dr Tyrrell additionally pointed out that such a proposal could run counter to the need to exhaust domestic remedies in order to litigate before the ECtHR, which would require Convention-based arguments to be fully explored at the domestic level.66 The ECtHR will dismiss as inadmissible any case where ECHR rights have not been invoked by the applicant in the domestic proceedings. A recent high-profile example of this is the case of Lee v. the United Kingdom otherwise known as the gay cake case.67

51. More might be done to improve the visibility, accessibility and enforceability of common law fundamental rights. However, any proposal to prioritise consideration of non-Convention rights and consider human rights protected under the HRA as a secondary matter raises a number of practical difficulties, increasing litigation costs and unduly hampering the normal functioning of the courts, and therefore should be avoided.

A risk of increased legal uncertainty and increased litigation costs

52. Lord Carnwath’s lecture, referred to at paragraph 23, set out clearly the difficulties with both options to amend section 2 HRA, which invite litigation to seek to interpret the newly restated rights and seem to invite the Courts to look to many potential sources when interpreting human rights. He noted that “as a judge trying to interpret the will of Parliament I would come close to despair [ … ] That particular proposal must surely not be allowed to get off the ground.”68 The House of Commons Justice Committee shared similar concerns, noting that “there is a risk that either of the two provisions proposed would cause uncertainty for limited, or at least unclear, benefit”.69 We agree. Either Option 1 or 2 will significantly increase the need for domestic litigation to determine the scope of the rights, at least at first, with all the litigation cost, time and periods of legal uncertainty that implies.

53. We also note the prevailing view that, after a period of confusion, legal uncertainty, and increased litigation, it could well be that “all that ends up happening is that courts carry on doing what they have been doing for the last 20 years, which is taking into account those cases that are relevant.”70 If that is not the approach taken, then people will need to litigate before the ECtHR in Strasbourg, with all the delay, cost and enforcement challenges that entails.71

54. Both options proposed in the consultation document run the risk of the UK being held in breach of its human rights obligations more often in Strasbourg, especially as the proposals will most likely result in less trust in, and understanding of, the UK internal process for respecting ECHR rights. As Dr Tyrrell set out:

Breaking the formal link between the UK courts and Strasbourg could also make it more likely that there will be [divergence] in the understanding of convention rights [ … ] people would be more likely to need to pursue their claims before Strasbourg; and of course, if they have not had the advantages of reading carefully reasoned judgments that take account of their jurisprudence, they might be more likely to find against the UK when they have to decide the case.72

This will also consequently result in a reduced margin of appreciation and more adverse ECtHR judgments against the UK.

55. We do not support either of the proposed options to amend section 2 HRA. There are significant disadvantages and no real advantages in pursuing either option. Both options would appear likely to increase legal uncertainty, with resultant impacts of increasing the cost and time of litigation to resolve such uncertainty. The options increase the likelihood of individuals needing to pursue their claims in Strasbourg. There are also risks that any such amendments would reduce the likelihood that UK judgements can be readily understood in terms of ECtHR analysis and thus risk more adverse ECtHR judgments against the UK.

The position of the Supreme Court

56. In its consultation document, the Government seeks views on whether it should set out matters that fall outside the institutional competence of the UK courts and suggests clarifying that the UK Supreme Court is the ultimate judicial arbiter of domestic law in the implementation of human rights.

57. We do not see any problem in principle with recalling that the UK Supreme Court is the ultimate judicial arbiter of domestic law implementing human rights in the UK. However, we agree with the Justice Committee that the supremacy of the Supreme Court has not been undermined by the ECHR.73 As such, this provision seems unnecessary.

The institutional competence of the Courts and judicial restraint

58. As Lord Mance set out clearly in his evidence to us, there are concerns with legislating for areas to fall outside the institutional competence of the UK Courts:

Judicial restraint, or the recognition of the institutional competence of the other organs of the State, responds to the particular circumstances of each case. An attempt to codify by statute [ … ] would be the opposite of a nuanced or balanced measure. It would in all likelihood give rise to repeated and successful challenges in Strasbourg on grounds that it restricted access to justice.74

59. Noting that measures to legislate for areas falling outside of judicial competence could “upset the delicate constitutional balance in the United Kingdom through which we aim to uphold the sovereignty of Parliament and the rule of law”, Professor Young and Dr Tyrrell told us that:

Courts are sensitive to the separation of powers and to the proper scope of their jurisdiction. This can be illustrated not only through the recognition of non-justiciable issues, but also through the exercise of deference when determining the law [ … ] The balance between [Parliamentary sovereignty and the rule of law] is maintained through inter-institutional comity. Each institution respects its own constitutional role and that of the other institutions of government.75

60. The doctrine of judicial restraint is very effective. The principle of comity is part of our constitutional culture and it is unlikely to be improved upon by legislating. Legislating for certain areas to fall outside the institutional competence of UK courts could risk unintended consequences, such as impeding access to justice. It could upset the delicate constitutional balance of upholding both parliamentary sovereignty and the rule of law.

4 Compatibility of legislation with human rights: Sections 3 and 19

Statements of compatibility and Parliament’s role in passing legislation: Section 19.

61. Section 19(1) HRA requires a Minister, before second reading of a Bill, to either make a statement that in the Minister’s view the provisions of the Bill are compatible with Convention rights (a section 19(1)(a) statement of compatibility) or that although they are unable to make a statement of compatibility the Government nevertheless wishes the House to proceed with the Bill (a section 19(1)(b) statement). This Committee, often through the work of its legal advisers, considers all Government Bills for compatibility with human rights commitments.

62. The Government consultation sought views on statements of compatibility under section 19 HRA and whether there is a case for change. We consider below how well section 19 is working in practice as well as some of the ideas that arose as part of the IHRAR work. As a starting point, we agree with Professor Young and Dr Tyrrell that any modification of section 19 “should be one that enables Parliament to debate human rights issues more effectively when enacting legislation”.76

Effectiveness of section 19

63. The existence of section 19 acts as a useful tool to ensure that the Government and the responsible Minister have adequately done their due diligence in considering the human rights compatibility of the legislation they propose.77 We are aware that they are usually made by Ministers following careful consideration of internal legal advice, and that, as Lord Wolfson said “Ministers take that obligation very seriously”.78

64. However, a section 19(1)(a) statement is no guarantee that the provisions of a Bill are compatible with human rights. The Annex contains a list of 19 declarations of incompatibility made since the entry into force of section 19 in 1998, that relate to Acts in respect of which a section 19(1)(a) statement was made—i.e. where, despite a statement of compatibility, that legislation was found to be incompatible. However, the real number of laws certified as compatible despite not so being so is likely much higher, because:

a) There are ECtHR judgments where legislation has been found to be incompatible despite a section 19 statement.

b) There are Bills that have been signed off as compatible when introduced, but which were consequently amended in Parliament after concerns were raised, thus remedying potential incompatibilities.

c) There are Acts that have been interpreted by the courts, sometimes using section 3 HRA in order to come to a compatible interpretation.

d) Finally, there will be some cases where the court has not made a declaration of incompatibility even where legislation has been found to be incompatible—it is a discretionary matter—so there are cases where an incompatibility has been identified despite a section 19 statement, but no declaration of incompatibility made.79

65. It is therefore clear that whilst section 19 statements serve a useful purpose, a section 19(1)(a) statement of compatibility is not a guarantee that legislation will indeed be compatible with human rights. Government and Parliament therefore could be doing a better job at ensuring their legislation complies with the Convention.

Explanations accompanying statements of compatibility

66. Section 19 statements are normally accompanied by an explanation justifying the Minister’s assessment of human rights compatibility, either within the Explanatory Notes accompanying the Bill, or in a separate ECHR Memorandum.80 The explanations accompanying section 19 statements can be of great assistance to Parliament in undertaking its analysis of the human rights implications of Bills. To facilitate parliamentary scrutiny of a bill, it is preferable for Parliament to have the Government’s reasoned analysis of human rights compatibility upon introduction of a Bill, in order to facilitate timely and meaningful parliamentary legislative scrutiny. At the moment the explanations can be of variable quality—some are inadequate and some arrive late, both of which can impede the ability of Parliament to scrutinise Bills effectively and in good time.

67. A statutory obligation to provide these explanations upon introduction of a Bill could improve Parliament’s ability to undertake its scrutiny function.81 Moreover, more rigorous processes within Government could also help to ensure consistently good quality of the explanations provided.

68. Professor Young and Dr Tyrrell additionally proposed that a duty on the Government to set out more clearly when it proposes benefitting from a wide margin of appreciation would also improve the quality of parliament debates in relation to human rights.82

69. Section 19 HRA statements of compatibility are a vital tool in understanding the Government’s intention and in assisting Parliament’s scrutiny of Bills for human rights compatibility, as well as in improving transparency. The section 19(1) obligation should be retained. However, it would improve parliamentary scrutiny if the obligation in section 19(1) were to bite upon introduction, rather than second reading of a Bill.

70. A revision of section 19 HRA to place the requirement to provide Parliament with an ECHR memorandum on a statutory footing could help to improve the timely provision of these explanations. Such a Memorandum should be provided upon introduction of a Bill, showing the Government’s analysis of the human rights compatibility of the provisions of the Bill. It would also help to have clearer indications within this analysis as to whether the Government is proposing that the UK benefit from a wide margin of appreciation.

71. One of the principal challenges to the ability of Parliament, and specifically this Committee, to scrutinise Bills for compatibility with human rights standards is the way that Government organises business in the House. The speed at which Bills, once introduced, often proceed to second reading—accompanied by often delayed or incomplete explanations—can prevent meaningful human rights legislative scrutiny.83 This situation is exacerbated when significant clauses of a Bill arrive after introduction.84 This means that the first House to consider a Bill often cannot benefit from our scrutiny and this is surely a failure in enabling meaningful scrutiny of a Bill before Parliament.85

72. The Government should reflect and engage with both Houses of Parliament on how business is managed to enable effective and timely scrutiny of a Bill for human rights compatibility.

Options

Different limbs within section 19(1)(b) statement

73. We note that the option of providing for different limbs of a section 19(1)(b) statement (i.e. a statement that the Minister is unable to make a statement of compatibility, whether due to deliberate incompatibility or due to uncertainty as to whether a proposal is compatible with human rights) was raised in the course of the IHRAR Panel’s work. The possibility of a section 19(1)(b) statement, as shown by the example of the Communications Bill and the Animal Defenders case, allows adequately for situations where the law is perhaps unclear.86 Moreover, a split between different potential limbs of section 19(1)(b) could cause more difficulties in cases where the Government’s advice may not be clear as to which potential limb within what is now section 19(1)(b) might be the correct one. As Professor Young and Dr Tyrrell said in their written evidence:

Section 19 does not prevent Ministers from introducing policies which may contravene Convention rights. Rather, it requires human rights scrutiny and ensures that any desire to legislate contrary to Convention rights has been debated and that it has the backing of Parliament. The provision, therefore, already provides sufficient flexibility to create innovative policies.87

74. We cannot see any significant value in amending section 19(1)(b) to separate out different limbs of this statement. Improved debates on section 19(1)(b) can most usefully be achieved through thorough and well-set out explanations accompanying a section 19(1)(b) statement.

Who should be involved in making a statement of compatibility

75. Various options were considered, and dismissed, by the IHRAR Report, as to alternative people who might make statements of compatibility. We agree that this is not an idea worth pursuing.

76. It would not be useful for someone other than the Minister proposing the Bill to make a section 19(1) statement, not least as it is Government and the Minister that have had the benefit of time to undertake the necessary analysis when developing the proposals in the Bill.

Reviewing Bills for compatibility with human rights

77. We cannot immediately see that there is any international body capable of reviewing Bills before Parliament for compatibility with human rights, in the way that measures affecting elections or the rule of law might be considered by the Venice Commission. We note the suggestion by Elizabeth Prochaska that there could be more of a role for the EHRC in reviewing laws, although we note that this too may run into challenges if the Government does not allow for sufficient time and resource for such work.88

78. We consider that some further thought might be given, in respect of Bills likely to be complex or controversial from a human rights perspective, to seeking an expert opinion on a Bill or draft Bill from either a national or international institution.

Relevance of all human rights standards

79. Section 19(1) statements could be extended to cover compatibility with all applicable human rights standards, including the common law and international obligations binding on the UK that affect human rights and that are relevant to the subject matter of the Bill.89 Whilst Departments often include this analysis, helpfully, in their accompanying explanations, it would help to have this as a clearer obligation on Ministers and for such explanations to be covered more consistently.

80. Section 19(1) statements and their accompanying explanations should be extended to cover compatibility with all applicable human rights standards, including the common law and international obligations binding the UK that affect human rights and that are relevant to the subject matter of the Bill.

Human rights compatibility of statutory instruments

81. We note the questions raised in the IHRAR report in relation to parliamentary scrutiny of statutory instruments for compatibility with human rights. In that light, we note that the Joint Committee on Statutory Instruments, as part of its general function in scrutinising statutory instruments, undertakes a review for respect of fundamental rights as part of its vires review. However, as for Bills, the explanations in relation to human rights compatibility provided by the Government can be variable and often no explanation is provided in the Explanatory Memorandum accompanying a statutory instrument. Whilst explanations need not be unduly lengthy, a short explanation would greatly assist in transparency and scrutiny of statutory instruments.

82. Adequate explanations setting out human rights compatibility analysis should be routinely provided in the Explanatory Memoranda accompanying statutory instruments, alongside the compatibility statements in those Memoranda.

Interpreting the law compatibly with human rights: Section 3

Section 3 HRA

83. Premised on the assumption that Parliament intends to legislate compatibly with human rights, section 3 HRA requires all primary and subordinate legislation to be “read and given effect in a way which is compatible” with ECHR rights, but crucially this obligation is limited by the phrase “so far as it is possible to do so”. Consistently with the constitutional principle of Parliamentary sovereignty, where courts find it impossible to interpret primary legislation compatibly with the ECHR, they are unable to strike it down but they do have a discretionary power to make a declaration of incompatibility under section 4 HRA. Such a declaration merely states the court’s conclusion—the incompatible legislation continues to have effect until action is taken by the Government and Parliament.

84. The concern of Government, made clear in the consultation paper, is that section 3 permits the courts, when seeking to read and give effect to legislation in a Convention-compliant manner, to adopt interpretations of legislation that fall outside the original intentions of Parliament. In so doing, the courts stray outside their constitutional role by effectively legislating and can do so inconsistently with the expressed will of the democratically-elected legislature. As Lord Wolfson summarised it, “The problem with Section 3, we think, is that it has resulted in the courts, effectively, rewriting legislation”.90

Government consultation proposals

85. The Government consultation proposes either repealing section 3 or replacing it “with a provision that where there is ambiguity, legislation should be construed compatibly with the rights in the Bill of Rights, where such interpretation can be done in a manner that is consistent with the wording and overriding purpose of the legislation.”91 The Government indicate in the consultation paper that they are minded to agree with the IHRAR Panel who did not recommend repeal, but they have nevertheless included it as an option in the consultation questionnaire.

86. The Government’s proposals run counter to the view of section 3 taken in the IHRAR report, and by this Committee in our previous work. In our report published in response to IHRAR’s consultation we concluded that there was no case for amending or repealing section 3.92 The IHRAR report came to very similar conclusions having also considered and rejected both repeal and replacing section 3 with a lesser interpretive obligation.93

Is reform of section 3 necessary?

87. Section 3 of the HRA ensures that legislation is read compatibly with human rights where possible, preventing the need for further legislation to correct incompatibilities. The courts recognise that section 3 is an interpretive tool rather than an invitation to amend legislation.94 We agree with the IHRAR report that, since the case of Ghaidan v Godin Mendoza in 2004, the courts have been careful to avoid using section 3 to reach interpretations that are “inconsistent with the scheme of the legislation or with its essential principles.”95

88. The Government does, however, cite some cases that post-date 2004 in support of their view that section 3 has diverted the courts “from the interpretation of legislation into straightforward judicial amendment.”96 These cases to do little to support the Government’s view that section 3 has been used inappropriately.

Case law referred to in consultation document

Connolly v DPP [2007] – a criminal appeal concerning an offence of sending indecent or grossly offensive communications. The High Court used section 3 to read into the Malicious Communications Act 1988 a provision to the effect that the relevant offence would not apply if it would result in a breach of a person’s right to freedom of expression.97

Gilham v Ministry of Justice [2019] – in which the Supreme Court used section 3 to extend the scope of whistle blower protections granted to ‘workers’ to also cover a judicial office holder.98

O’Donnell v Department for Communities [2020] – a case concerning the requirement that the deceased had to have made national insurance contributions for bereavement benefits to be payable. The Northern Ireland Court of Appeal used section 3 to disapply this requirement in cases where the deceased had been disabled and unable to work for their entire life.99

89. Connolly, which was decided approximately 15 years ago, recognised that the criminal law needs to respect freedom of expression, which the Government has itself described in the consultation paper as “a unique and precious liberty” and proposed should presumptively trump competing rights and public interests.100 Furthermore, despite the reliance on section 3 HRA in Connolly, the appeal invoking Articles 9 and 10 ECHR was rejected and the conviction upheld.

90. In respect of the two more recent cases, Gilham and O’Donnell, we do not believe that, when passing legislation concerning whistle blowers and bereavement benefits respectively, Parliament expressly intended judicial office holders to be denied whistle blower protection or for individuals to be denied bereavement benefits because their deceased partner had been unable to work due to disability. Indeed, Lord Carnwath, one of the Supreme Court judges who decided the case of Gilham, has explained that there was no evidence that Parliament or Government had addressed their minds to the exclusion of the judiciary from the protection the law provided and no legitimate aim suggested for that exclusion.101 Furthermore, the wider reading the court adopted in that case had already been accepted in another context without problem. The alternative to the courts using section 3 would have been for the claimants in those cases, and others in the same position, to have remained without a remedy for the infringement of their human rights, either awaiting amendments to the legislation being brought forward by Government or pursuing their claims in the ECtHR. Like Lord Carnwath, we can see no reason why the claimants should have been forced to go to Strasbourg to achieve the same result.102 Indeed, we are unable to see why either case is anything other than an example of section 3 working well, in the way that was intended.

91. In oral evidence we also heard the Supreme Court case of DPP v Ziegler103 cited as a recent example of the courts “unilaterally rewriting [ … ] legislation” in order “to make it say something that it simply doesn’t say.”104 Again we disagree. In Ziegler the court merely followed the well-established interpretation of the ‘lawful excuse’ defence to obstructing the highway as taking into account the right to protest, guaranteed by Articles 10 and 11 ECHR (freedom of expression and freedom of assembly). Whatever one thinks of the specific facts of the alleged offence and how they were assessed by the first instance court, there was nothing surprising or inappropriate about the use of section 3 in this case.105

Implications of proposed reforms

92. Repealing section 3 would leave the courts without clear guidance on how to interpret legislation in light of the new Bill of Rights. The approach to the ECHR prior to the introduction of the HRA relied on the presumption that the UK intended to legislate compatibly with its international obligations, but that presumption was only applied where there was ambiguity in the legislation being interpreted.106 The courts have taken a somewhat different approach to interpreting legislation in light of fundamental rights recognised in domestic law–applying a presumption that Parliament did not intend to remove or limit them, and therefore only interpreting legislation as doing so where it does so clearly and unambiguously.107 In the absence of any statutory direction it would be left to the courts to decide which of these approaches, or another, is appropriate in respect of rights derived from the ECHR but set out in a domestic Bill of Rights.

93. The proposal to replace section 3 with a lesser interpretive obligation would provide greater certainty and is, to that extent, preferable. Nevertheless, it would have much the same effect as repeal, as both would lead to a reduction in the protection for human rights in the UK. In respect of primary legislation, the courts would have less ability to use interpretation to ensure compliance with human rights and would instead be forced to turn more often to declarations of incompatibility. As Professor Tomkins said: “if we, in a sense, have less reliance on Section 3, it follows that there will be more reliance on Section 4 [ … ] it follows that there are likely to be more declarations of incompatibility in the future.”108 We have already observed that a declaration of incompatibility does not remedy the incompatibility or even require action to be taken to remedy it. A person affected may still choose to attempt to obtain a more effective remedy from the ECtHR.109 In this sense, as Lord Mance noted to us in oral evidence, “the consequence would be the loss of one of the aims of the original Act, which was to avoid people having to go off to Strasbourg.”110

94. In respect of secondary legislation that appears inconsistent with Convention rights, removing or lessening the section 3 interpretive obligation could have the effect of the courts resorting more frequently to quashing orders, not least because to do otherwise would be inconsistent with their section 6 HRA obligation to act compatibly with Convention rights. This does not appear to be consistent with the rest of the Government’s reform agenda (and may explain the Government’s proposal, discussed below, to allow declarations of incompatibility to be used more widely in respect of secondary legislation).

95. For the immediate victim, the disadvantages of a declaration of incompatibility (and the need to take a claim to the ECtHR) could be offset by adopting one of the recommendations made in the IHRAR report: introducing a system of ex gratia payments by the Government where a declaration of incompatibility has been made.111 This would not assist, however, any other persons affected by the ongoing incompatibility.

96. An additional consequence of a reduction in the court’s ability to interpret legislation compatibly with Convention rights would be a greater burden on the Government to produce remedial legislation and on Parliament to scrutinise and pass that legislation. Declarations of incompatibility can already take years to result in legislative change, increasing the number could substantially extend the period in which incompatible legislation continues to have effect.112 It is far from clear that Parliament wishes to take on this burden that is currently managed by the courts.

97. The implications of changes to section 3 would not be confined solely to the courts; the duty to interpret legislation compatibly with the convention is also required by public authorities when they are making decisions.113 Changes to section 3 thus threaten to undermine the mainstreaming of human rights and the tentative building of a ‘human rights culture’ that has taken place over the past 22 years.

98. We agree with the IHRAR Report’s conclusion that there is no real evidence to suggest that the UK courts are misusing section 3. By only adopting interpretations that are consistent with the scheme of the legislation, the courts are balancing respect for Parliamentary sovereignty with effective protection for human rights. Repealing section 3 would create uncertainty in the law and substantially weaken the protection of human rights in the UK, both in the courts and through the wider culture of rights. Replacing section 3 with lesser interpretive obligations would have the advantage of greater certainty, but otherwise would be likely to result in similar damage to the protection of human rights in the UK.

99. We support the proposal from the IHRAR report that a system be introduced for ex gratia payments where declarations of incompatibility are made, as this would mitigate some of the disadvantages of the declaration for the immediate claimant by providing them with some relief.

5 Remedying incompatibility: Sections 4 and 10

Statutory instruments and remedies: Section 4

100. Section 4 HRA balances respect for Parliamentary sovereignty and the court’s role in enforcing human rights, by allowing the senior courts to make declarations of incompatibility when they are unable to read primary legislation compatibly under section 3 HRA. When the senior courts are unable to read secondary legislation (i.e. legislation made by Ministers under the authority of an Act of Parliament) compatibly, the same need to respect Parliamentary sovereignty does not apply, so declarations of incompatibility are generally unavailable. The only exception is when removing the incompatibility would be inconsistent with primary legislation.114 The courts are otherwise entitled to ‘quash’, or invalidate, incompatible secondary legislation, or disapply provisions that offend against human rights, as they are able to do if they find secondary legislation unlawful on other grounds–such as where it has been made outside the authority given by the parent Act (‘ultra vires’).

What is the Government proposing?

101. The Government consultation asks whether the Courts “should be able to make a declaration of incompatibility for all secondary legislation, as they can currently do for Acts of Parliament”.115 This language suggests the proposal is merely to make declarations of incompatibility a remedial option for the Higher Courts, but the main text of the consultation goes further, stating that the Government wishes to explore declarations of incompatibility being “the only remedy available”.116 The consultation says very little about why the Government wants such a change.117

102. Giving the courts the option of making declarations of incompatibility in respect of secondary legislation appears to be inconsistent with the constitutional justification for their introduction. Where legislation is made by Ministers, with limited Parliamentary scrutiny, there is not the same need to protect Parliamentary sovereignty. Furthermore, such a change would effectively give the courts a discretion to allow the Government to act incompatibly with human rights when making secondary legislation. This would undermine section 6 HRA, which requires both the Government and the courts to act compatibly with Convention rights. An increase in declarations of incompatibility would result in more victims being denied prompt and effective remedies for human rights violations arising from secondary legislation; leaving them instead waiting on the remedial process or turning to the ECtHR.118

103. Making a declaration of incompatibility the only available remedy in respect of incompatible secondary legislation would remove the ability of the courts to quash secondary legislation that is unlawful—but only in respect of unlawfulness on human rights grounds. Professor Conor Gearty, Professor of Human Rights Law at the London School of Economics, described this proposal as “incoherent”, while Elizabeth Prochaska called it “bizarre”, adding that:

The power [to quash secondary legislation] is entirely consistent with the basic rule of law principle that the courts can ensure that secondary legislation made by Ministers is within the powers granted by Parliament in primary legislation—so it seems a very peculiar suggestion, and unconstitutional, frankly, given the way that our constitution currently works.119

104. Rather than rebalancing the power of Parliament and the power of the courts, such a change would substantially alter the balance of power in favour of the Government. It would remove an important check on executive power, having, as Professor Gearty suggested, “a huge impact on the capacity of the Government to govern without the requirement to adhere to human rights.”120 In doing so, it would inflate the status of secondary legislation made by Ministers, making it equivalent to primary legislation under the HRA, which is constitutionally inappropriate. It would also grant greater protection to secondary legislation made by Ministers than is given to legislation made by the devolved legislatures, undermining their status, and potentially upsetting the devolution settlement. We agree with Lord Mance, who commented that:

It would be a strange, unexpected and inappropriate situation in which you could strike down the legislation of the devolved Administrations but could not in relation to secondary legislation, which does not receive the attention that would merit it being given the status in this context of primary legislation.121

105. Finally, removing the courts’ power to quash secondary legislation only in respect of human rights would relegate unlawfulness on human rights grounds to a lesser category below other forms of unlawfulness, thereby undermining the status of human rights generally.

106. This Committee has previously concluded that:

The court’s power to quash secondary legislation that cannot be read compatibly with Convention rights respects Parliamentary sovereignty rather than challenging it. It is also an appropriate check on the power of the Executive, in accordance with the separation of powers and the rule of law.122

107. We note that IHRAR came to a similar view in their report.123 We see no reason to conclude otherwise now.

108. We disagree with the Government’s proposal that the courts should be able to make declarations of incompatibility in respect of secondary legislation (beyond the limited circumstances already provided for in section 4(3) and (4) HRA).

Human rights are fundamental and have a special place in the domestic and international legal order

109. The proposal to allow only declarations of incompatibility in respect of statutory instruments that violate human rights leads us to an overarching concern. Human rights are internationally recognised as necessary protections against abuse of power by the State against the individual. As such, they benefit from specific protection within both the international and domestic legal order. In respect of the HRA itself, Professor Francesca Klug, Visiting Professor at LSE Human Rights, and others have described the HRA as a ‘higher law’, as it influences and shapes all other statutes and policies.124 However, some of the Government’s proposals seek to reduce the status of human rights to being of a lesser value than other public law principles. That is counter to our view that human rights must benefit from special protection as fundamental constitutional values protecting the individual against abuse of power by the State.

110. Human rights provide protection against abuse of power by the State and should have a special place within the domestic legal order. The HRA gives human rights a central place in the UK constitution, whilst nonetheless respecting Parliamentary sovereignty. It is important that any reforms do not upset this delicate balance.

Suspended and prospective-only quashing orders

111. The consultation paper also asks whether “proposals for suspended and prospective only quashing orders put forward in the Judicial Review and Courts Bill [should] be extended to all proceedings under the Bill of Rights where secondary legislation is found to be incompatible.”125 We have reported separately on the relevant provisions of the Judicial Review and Courts Bill.126 We see no reason why suspended and prospective only quashing orders, if introduced, would not apply to judicial reviews concerning human rights. We reiterate our view that the use of these orders should be a matter of judicial discretion and that they must not be used in such a way that would deprive of an effective remedy a victim of a human rights violation.

Remedying incompatibilities: The role for Parliament: Section 10 and ECHR judgments

112. One recurring theme in both the IHRAR Report and the Government’s consultation paper seems to be a call for increased parliamentary involvement in deliberating on human rights matters. This will be all the more important if the powers of the courts are diminished. However, the Government proposals don’t seem to propose any increased role for Parliament. In order to ensure that the Bill of Rights work is not merely seen as a project to diminish the accountability of the Executive to both Parliament, and the Courts, it is worth reflecting further on what increased role Parliament can play.127

Addressing incompatibilities: Section 10 remedial Orders

113. When it becomes clear that UK legislation breaches human rights (e.g. following a declaration of incompatibility or an ECtHR adverse judgment), it is important that swift action is taken to remedy such breaches, so that individuals do not continue to suffer unjustly as a result. However, when that action requires amendment to primary legislation, it can often be difficult to find parliamentary time to remedy incompatibilities with human rights. Remedial Orders are statutory instruments subject to a super-affirmative procedure, made under section 10 HRA. They can be used to address a human rights incompatibility with primary legislation following an adverse judgment and where there are compelling reasons for using the remedial power rather than a Bill—usually matters of expediency given pressures on parliamentary time.

Option (a): Retain the remedial power in section 10 HRA

114. This Committee’s response to the IHRAR consultation and the IHRAR report itself broadly concluded that the process was useful for addressing human rights breaches without undue delay; it was not being abused by Government or used too frequently; and the JCHR gave detailed scrutiny to proposed orders.128

115. Remedial Orders can be a useful tool for remedying human rights breaches. As such, the Committee supports the option put forward by the Government of retaining the remedial power to assist in addressing human rights violations.

Improving the timeliness of remedying an incompatibility

116. More might be done to improve the timeliness of remedying an incompatibility. As Professor Young pointed out, “it can be quicker to enact legislation in response to an adverse judgment or a declaration of incompatibility than it can be to use Section 10, because Section 10 has the draft affirmative element and you have to lay it before Parliament for 60 days”.129

117. It could be useful to consider shortening the timeframes for Remedial Orders to make the remedial process more expeditious. The first timeframe could perhaps be shortened from 60 days to 50 days for the first report in respect of a proposed draft Remedial Order; and the second one from 60 days to 30 days. Similarly, that would mean that the overall time for the urgent process could be 80 days. That should still be achievable for this Committee to report, provided resources are allocated appropriately. However, we would note that the most significant delay with Remedial Orders tends to be waiting for the Government to decide on how to address an incompatibility, which can take many years. It may therefore be more useful to consider how to expedite Governmental decision-making, perhaps through a more formal process of engagement with Parliament in setting a deadline for remedying incompatibilities.

118. Whatever option is pursued, there is scope for improving the exchange of information and interaction between the Government and this Committee in determining how best to resolve incompatibilities and in setting a timeframe for resolving such incompatibilities.130 This should help to ensure that those whose human rights are breached by such legislation do not remain unduly affected for longer than necessary.

119. There is a risk that the combined effects of the proposed amendments to s. 2, 3, 4 and 12 HRA, as well as to the law on deportation, would be likely to result in an increase in declarations of incompatibility. With or without changes to the remedial order process, it would appear that more parliamentary time will need to be dedicated to resolving breaches of human rights in the UK.131 There is a risk that this combination of issues undermines the enforcement of human rights in the UK, particularly if adequate parliamentary time is not made available to consider respect for human rights and to rectify incompatibilities, and if proposals from the Government on how to remedy incompatibilities aren’t brough forward in a timely fashion.

120. IHRAR considered that the JCHR should perhaps have a greater role in holding the Government to account for setting deadlines and taking action to address human rights violations and incompatibilities. The Government consultation sets out various options, mainly to limit the remedial power.

121. A more structured system should be established to ensure strong collaboration between Government and Parliament in taking timely action to resolve human rights violations. Following a declaration of incompatibility, the responsible Minister should write to the Committee setting out his proposed timetable and method for addressing that incompatibility. The Committee can then consider and agree that timetable with the Government, and can then help to hold both Government and other actors to account in taking timely action to address such violations.

Option (b): Restricting the use of the remedial power in respect of specific Acts

122. The IHRAR Report considered that further thought should be given to whether Henry VIII powers, such as the remedial power, should be used to amend constitutional documents, such as the HRA, which is reflected in option (b) of the Government’s consultation.132 Alternatively, this restriction could simply apply to amending the HRA only—which is the case for some, but not all, Henry VIII powers.133 We note in this respect that the House of Lords Constitution Committee has previously concluded that Henry VIII powers that relate to a constitutionally sensitive subject-matter should use a super-affirmative parliamentary procedure, which is obviously already the case for the remedial power in section 10 HRA.134 We further note that, unlike many other Henry VIII powers, the remedial power in section 10 HRA can only be used where there has been a prior ruling of incompatibility by a Court, which is a powerful safeguard against any risk of overuse by the Government.135 Therefore, whilst we would support further consideration of option (b), we do not consider that the current formulation is necessarily problematic given the limits on the use of this power.

Pressures on parliamentary time: Option (c) and option (d): Removing the non-urgent procedure and removing the remedial power

123. Option (d) would dispose entirely of the remedial power, meaning that primary legislation would be the only option to address incompatible legislation. Given existing pressures on Parliamentary time, this could raise concerns as to whether remedying incompatible legislation would be given sufficient priority.

124. Option (c) would remove the non-urgent procedure for remedial orders. In this respect, we note that of 11 remedial orders made, only 3 used the urgent procedure and that this procedure has not been used since 2011.136 It is unclear whether the remedial power could then be used, as currently, but with the urgent procedure as the only procedure (irrespective of the urgency) or whether this would significantly restrict the availability of the remedial power. If the former, this would seem, without good reason, to grant the Minister power to make legislation before sufficient time was allowed for parliamentary consideration of the measures being proposed. If the latter, this would raise similar concerns to option (d). Moreover, there is a clear risk with option (c) that the Government would recast increasing matters as “urgent” in order to avail itself of the remedial procedure, given the likely delays in addressing human rights breaches. Indeed, a wider range of matters may become urgent, if significant efforts are not made to establish systems for resolving human rights breaches. We therefore have some concerns about how option (c) would work in practice.

125. The Committee is concerned that option (d) of removing the remedial power (and probably option (c) of removing the non-urgent procedure) would, without separate measures to enable legislation to be brought swiftly, lead to persistent human rights violations and incompatibilities in the UK being unresolved or taking too long to resolve.

126. When we asked the Minister how the Government planned to secure the additional parliamentary time necessarily implied by these proposals, he merely said “It is not for me to tell the business managers what ought to be prioritised and what ought not to be prioritised”.137 We would be concerned about removing the remedial order process before having a clear sense of how the government intended to ensure issues of compatibility were dealt with in a timely fashion through primary legislation.

127. Were either option (c) or (d) to be contemplated, the Government and Parliament need to work together to devise a way of ensuring a timely response to addressing human rights breached in the UK.

Parliament’s role in considering adverse ECtHR Judgments

128. The Government acknowledges that the UK must abide by final decisions of the ECtHR as a matter of international law, and proposes to legislate (i) to provide a mechanism to inform Parliament of adverse ECtHR judgments; and (ii) to provide that Ministers may exercise a power to table a motion in order to facilitate debate in either House about an adverse judgment.

Proposals to better inform Parliament of adverse ECtHR judgments

129. We welcome the suggestion for a mechanism to improve the information being provided to Parliament about ECtHR judgments and indeed human rights more generally. It would be useful to link this also with better provision of information, in relation to judgments relating to s. 3 and 4 HRA in the UK as suggested elsewhere in the Government’s consultation.

130. This could be part of a useful exchange between this Committee and the responsible Minister for devising a programme for action to be taken, without delay, for resolving and removing human rights violations in the UK. Suitable arrangements should also be made, where appropriate, in the devolved legislatures with the responsible Ministers.

131. A more structured system should be established to ensure strong collaboration between Government and Parliament in taking timely action to resolve human rights violations. Following an adverse ECtHR judgment, the responsible Minister should write to this Committee setting out his proposed timetable and method for resolving a judgment. We can then consider and agree that timetable with the Government, and can help to hold both Government and other actors to account in taking timely action to address such violations.

Proposals for Ministers to table a motion to facilitate debate about an adverse ECtHR judgment

132. In relation to the proposal to provide in statute that Ministers may exercise any power that they already have to table a motion in order to facilitate debate in either House about an adverse judgment, this provision does not seem to achieve anything. It seems to be telling a Minister that they may exercise powers that they already have. We note that the Government already controls the agenda in the House of Commons and can make parliamentary time for debates and motions. The inclusion of a reference in statute to a discretionary, seemingly pre-existing power to table a motion would therefore be legally unnecessary and would risk opening its use, or lack of use, to debate and possibly challenge before the courts. Any such challenge could prove controversial, as well as risking offending against Article IX of the Bill of Rights 1689 by “impeaching or questioning” proceedings in either House of Parliament.

133. There are also concerns that this proposal (referred to in the Government’s consultation document as a “democratic shield”) could be seen as an attempt to create domestic barriers to the UK giving effect to its human rights obligations, including to respect the human rights of people in the UK, without undue delay. As Professor Young and Dr Tyrrell set out, there are risks of exacerbating issues if they are unnecessarily politicised:

The prisoner voting saga is an example. The political reception of Hirst v UK might have given the impression that the Strasbourg court had declared any ban on prisoner voting incompatible with Convention rights. It was the indiscriminate nature of a blanket ban that was the problem: ‘a general, automatic and indiscriminate restriction on a vitally import Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be’. This is made more obvious by the fact that a very small change, granting the vote to an estimated 100 or so offenders released on temporary licence, was eventually taken to comply.138

134. The inclusion of a reference in statute to a discretionary, seemingly pre-existing power to table a motion is legally unnecessary and would risk opening its use, or lack of use, to debate and possibly challenge before the courts. Whilst we encourage more time to be given to considered debates in Parliament in relation to respect for human rights, we cannot see that this provision is necessary or particularly constructive in that regard.

6 Qualified rights and limited rights and proportionality

Proportionality

135. While some of the rights contained in the ECHR and given domestic effect through the HRA are absolute, allowing no interference, others are qualified.

Qualified rights

Qualified rights are rights that can be interfered with in order to protect other rights or the wider public interest. They include the right to respect for private and family life (Article 8), freedom of religion and belief (Article 9), freedom of expression (Article 10) and freedom of assembly (Article 11). An interference with these rights will only be lawful if it is in accordance with the law and ‘necessary in a democratic society’ in order to achieve one of a range of legitimate purposes.

136. The ECtHR approaches the question of ‘necessity in a democratic society’ by (i) requiring the measures taken to ‘meet a pressing need’ and (ii) determining whether the measures (and the interference with rights they represent) are a proportionate means of achieving the legitimate aim. Domestic courts have adopted the same proportionality test when considering whether interferences with qualified rights are justified. Proportionality is a core concept for the ECHR, as it may also come into play when considering the extent of limited rights and positive obligations.139

Government concerns about proportionality

137. According to the consultation, the Government considers “the application of the principle of proportionality by the courts has created considerable uncertainty”, presumably because in some cases different views have been expressed on whether an interference is or is not proportionate.140

138. Public authorities have long been required to comply with public law principles including the standard of ‘Wednesbury unreasonableness’.141 The Supreme Court has noted the similarities between this standard and that of proportionality, as both “involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision-maker’s view depending on the context.”142

139. Yet proportionality has the additional advantage that it “introduces an element of structure into the exercise, by directing attention to factors such as suitability or appropriateness, necessity, and the balance or imbalance or benefits and disadvantages.”143 As Professor Gearty commented:

I do not understand the argument that [proportionality] leads to uncertainty. I learnt my public law in England on the basis of the Wednesbury principles, which were fairly incomprehensible, and proportionality was a rational controller of an otherwise extremely odd set of unpredictable cases that produced an effect that nobody could be quite sure of in any individual case. Reverting to that would increase uncertainty.144

140. Proportionality does, however, provide for a greater intensity of review of the actions of public authorities.145 Professor Tomkins described it is “a sharper weapon in the hands of the judiciary than old doctrine of Wednesbury unreasonable.”146 Yet we consider proportionality is less a ‘weapon’ and more a valuable tool, which is necessary to ensure that public authorities comply with Convention rights.

Government Proposals

141. In addition to its general concerns about the application of the principle of proportionality, the consultation document proposes specific changes to the HRA designed to “provide guidance to the court on how best to balance qualified and limited rights”: requiring the courts, when assessing whether an interference with a qualified right is “necessary in a democratic society” or when assessing more generally what is in the public interest, to give “great weight” to the expressed view of Parliament.147

Is the proposal necessary?

142. The courts are already bound to uphold Parliament’s assessment of the public interest as expressed through primary legislation, even when it interferes with Convention rights, unless they can find an interpretation that complies with Convention rights and does not go against the overall purpose of the legislation. Furthermore, when addressing proportionality more generally, the courts already pay the view of Parliament significant regard. Lord Mance explained the approach the judiciary take:

There is a strong presumption that you start with what Parliament has enacted, and if somebody says that it is contrary to the convention rights they have to make that good. That said, we weigh what is necessary according to the circumstances.148

143. The need for the courts to pay respect to other branches of government has been emphasised in recent case law, such as SC in the Supreme Court:

[D]omestic courts have to respect the separation of powers between the judiciary and the elected branches of government. They therefore have to accord appropriate respect to the choices made in the field of social and economic policy by the Government and Parliament, while at the same time providing a safeguard against unjustifiable discrimination.149

144. Professor Young agreed that “the courts definitely do try to take [the view of Parliament] into account.”150 Professor Tomkins, who was of the view that “there are judges, even at the highest level, who do not, … defer appropriately … to the judgment of government and Parliament” also believed that “by and large, because of the prudent judgment that most of our judges bring to this most of the time, our courts in the United Kingdom have given sufficient weight to the intention of Parliament in its legislation.”151

145. We do not agree that the application of the principle of proportionality has given rise to significant problems in practice. It is a valuable tool that is necessary to the understanding and enforcement of qualified rights under the ECHR. The proposed changes to the court’s assessment of proportionality are neither necessary nor beneficial. If too much emphasis is placed on the assessment of proportionality or public interest by the legislature, the court may be inhibited in its ability to carry out the proportionality assessment itself. This risks Parliament and the Executive trespassing on the Court’s constitutional function, thereby damaging the separation of powers. It also risks victims being denied their rights without justification.

7 Duties on Public authorities

Public authorities and section 6

146. Section 6(1) HRA makes it unlawful for a “public authority” to act in a way which is incompatible with a Convention right. The Government is proposing two potential changes to section 6 HRA.

Definition of a public authority

147. The Government is considering whether to introduce drafting which sets out when a body will be deemed to be “exercising functions of a public nature”. Although the Government states that the current scope of section 6 HRA applies to the correct range of bodies, they are concerned that it can be difficult to predict whether particular functions are of a public nature.152

148. Section 6 effectively recognises two categories of public body:

a) Core public authorities, which are obviously public in nature in respect of all their functions.153 Core public authorities must act compatibly with the ECHR, whether exercising functions governed by public law or private law.

b) Functional public authorities, which are bodies whose functions are functions of a public nature (but the duty under section 6 does not apply in respect of private acts).154

149. The “public function” test under section 6(3)(b) is intended to make the Act comprehensive, rather than restrictive in its application, in accordance with the principle that delegation does not absolve the State of responsibility.

150. Case law is now relatively settled as to the definition of public authorities, and the factors which must be applied to determine whether a body is exercising functions of a public nature. These factors are set out by Lord Nicholls in Aston Cantlow,155 and include consideration of matters such as the nature and extent of any statutory duty or power; the extent to which the state regulates, supervises or inspects the performance of the function; whether the function is one for which the state is willing to pay; and the nature and extent of the public interest in the function.

151. In his evidence to us, Lord Mance noted that “whether a body ought to be regarded as a “public authority” for the purposes of the Human Rights Act is a multifactorial judgment of a kind which courts are probably best placed to undertake on a case by case basis in the light of all the case’s characteristics.”156 He also highlighted that “Parliament can always reverse a particular decision that a body is (or is not) a public authority under the Act”.157

152. The relevant factors to be applied in order to determine when functions are of a public nature is now a settled matter set out clearly by the case law. As there is no universally agreed test to determine whether a function is of a public nature, the weighing of relevant factors is a matter best left to be determined by the courts. It is therefore unlikely that seeking to redefine “public authorities” in legislation will assist with clarity. If anything, it may risk introducing more ambiguity, as the courts will have to start again with interpreting a new provision.

153. We would not support any redraft or clarification of the definition of public authorities in statute that would seek to narrow the existing definition of the State so as to erode human rights protections. The State should not evade its responsibility to safeguard Convention rights by delegation to private bodies or individuals.

The defence in section 6(2)

154. The Government is also proposing to replace section 6(2) HRA, which provides a defence for public authorities against claims that they have breached their duty under section 6(1) to act compatibly with the ECHR. The defence applies where (i) the public authority is acting in accordance with primary legislation and could not have acted differently; or (ii) where the public authority is giving effect to a statutory provision which cannot be rendered Convention compliant.

155. Section 6(2) is intended to preserve parliamentary sovereignty and provide a ‘legislation defence’ for public authorities.158 As Lord Nicholls said in Aston Cantlow:

[S]ection 6(2) of the Human Rights Act is concerned to preserve the primacy, and legitimacy, of primary legislation. This is one of the basic principles of the Human Rights Act … a public authority is not obliged to neutralise primary legislation by treating it as a dead letter. If a statutory provision cannot be rendered Convention compliant by application of section 3(1), it remains lawful for a public authority, despite the incompatibility, to act so as to ‘give effect to’ that provision.159

156. The Government’s concern is that public authorities may act in contravention of the will of Parliament under section 6 as currently drafted. The Government proposes to replace section 6(2) to provide either:

a) that wherever public authorities are clearly giving effect to primary legislation, then they are not acting unlawfully (“Option 1”);160 or

b) retain the current exception to the section 6(1) duty, but in a way which mirrors the changes to how legislation can be interpreted discussed above for section 3 (“Option 2”).161

157. The Government explains that Option 1 would remove the existing qualification, “which cannot be read… compatibly with the Convention rights”.162 According to the Government, the effect of this would be to allow any public authority acting, enforcing, or giving effect to provisions of or made under primary legislation, in the way Parliament clearly intended, to do so lawfully—even where the actions of the public authority are clearly in breach of Convention rights. This would remove a cause of action that is currently available to individuals under the ECHR, and reduce rights protection, as public authorities would have an absolute defence when acting in accordance with legislation.

158. Option 2 retains broadly the same formulation in section 6(2) as it is now. However, the way in which a public authority should interpret Convention rights under this option would be linked to any changes made to section 3 HRA. It is not clear how this would operate if the Government simply removed the interpretive obligation currently contained within section 3 (although we understand that this is unlikely). One option proposed by the Government in relation to section 3 HRA would mean that the courts and public authorities would only be permitted to read legislation compatibly with the ECHR/Bill of Rights when the language was ambiguous or a natural reading of the language permitted it. If the Government modifies the interpretive obligation in section 3 and this is reflected in section 6, then public authorities could act incompatibly with Convention rights as long as they were seeking to give effect to or enforce provisions of legislation which were unambiguous.

159. Lord Mance told us that there is no justification for any such “broadening of the defence available in section 6(2)”.163 He further stated:

What I believe may be being suggested is, however, that a local authority which is not in fact giving effect to primary legislation, but believes wrongly that it is, should be immune. That would mean there were two laws: the actual (but unenforceable) law and the local authority’s “personal belief law” which, if established (presumably by evidence from the relevant local authority’s officers), would render it immune and deprive a claimant of the protection of the actual law. The rule of law would then be replaced by the rule of personal belief.164

160. Section 6 HRA respects parliamentary sovereignty by allowing public authorities a defence when they are acting in accordance with legislation that allows for no discretion or where legislation cannot be interpreted compatibly with Convention rights. It is not clear, therefore, why the Government is concerned that this provision requires amendment.

161. The proposed options would reduce rights protections for individuals. Section 6 HRA places human rights front and centre of public authorities’ approach to providing services, helping to create a human rights culture. Any weakening of this duty is likely to undermine human rights culture within public authorities and would leave individuals with no choice but to pursue their claims in court.

162. The wider the ambit of the defence in section 6(2), the more likely that there will be an increase in cases where the UK is failing to provide an effective domestic remedy for any breach of Convention rights as required by Article 13 of the ECHR.

Positive obligations

163. Positive obligations go beyond a duty not to interfere with Convention rights, and require that, in some circumstances, the state must take active steps to protect people’s rights against interference by others. They are a central principle of the ECHR.

164. The Government states that a modern Bill of Rights will “restrain the ability of the UK courts to use human rights law to impose positive obligations onto our public authorities without proper democratic oversight”.165 The Government further states that the “the wider development of ‘positive obligations’ on government authorities, has given rise to considerable legal uncertainty, with incrementally expanding interpretations of the scope of certain rights and judicial amendment of legislation.”166

Legal basis for positive obligations

165. The legal basis for the imposition of positive obligations is found in Article 1 ECHR (which requires states to secure to everyone within their jurisdiction the rights and freedoms set out in the Convention) and the express wording of certain rights imposes positive duties on states, for example: Article 2 requires that the right to life shall be protected by law; Article 3 requires the provision of prison conditions which are not inhuman; Article 6 requires the provision of legal aid and interpreters; Article 3 of Protocol 1 requires free elections.

166. In addition to the express wording in the ECHR, the courts have implied various positive obligations in order to secure effective rights protection. The nature and extent of the positive obligations incumbent upon states inevitably vary by Article. For example: Article 2 has been interpreted as imposing a general positive obligation to secure the right to life by putting in place effective criminal legislation supported by law enforcement machinery.167 Article 3 has been interpreted as imposing a positive obligation to investigate well-founded allegations of inhuman and degrading treatment, by state actors or private persons.168 Article 4 has been interpreted to impose a positive duty to put in place and enforce an adequate criminal law and investigative framework to protect people from being subject to forced labour.169

Approach of the ECtHR to positive obligations

167. When determining whether or not a positive obligation exists, the ECtHR has regard to “the fair balance to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention.”170 The domestic courts have applied the same principle.171 The ECtHR will apply a number of factors when determining the extent of any positive obligation under a Convention right, including whether the right in question is broadly or narrowly defined; whether essential aspects of a right are at issue; the extent of any burden that may be imposed on the state; the uniformity of views or practices in other states; and the severity of the effect of the omission on the applicant’s rights.172

168. As the Government sets out, the scope of positive obligations has been developed through domestic and ECtHR case law—this is the same way that common law rights have been developed over the years. Article 2 is a prime example, as the duty to take positive action has been extended through case law to cover, for example, accidental deaths due to natural disasters173 and protection against domestic violence resulting in death.174 The threshold has nevertheless remained high, requiring the risk to life to be “real and immediate”. The courts have, on occasion, found this test to be particularly restrictive.175

169. Whilst resources of public authorities are a legitimate concern, the Government has not provided any evidence of the resource burden upon public authorities as a direct result of their positive obligations under the ECHR. The Government cites the burden of issuing “threat to life” notices, but does not provide any data to demonstrate the evidence base for these concerns. It is important to note that “threat to life” notices were not prescribed by the ECtHR as a means of compliance with Article 2—this measure has been adopted by the Government in order to adhere to the obligation to protect life where there is a real and immediate risk—it is, therefore, open to the Government to change this measure as it sees fit. Further, the ECtHR is cognisant of the resource pressures on public authorities and explicitly acknowledges this in its case law.176

170. In evidence to our inquiry, Lord Wolfson indicated that the problem was not the substantive nature of the positive obligations arising from Convention rights, but “the genesis of the obligation: should it come from Strasbourg jurisprudence or should it come from democratic accountability?”177 The genesis of positive obligations is not simply “Strasbourg”; positive obligations are both expressly provided for in the text of the Convention rights and impliedly provided for in order to secure effective rights protection.178

171. Positive obligations are a central principle of the ECHR. Positive obligations go beyond a duty not to interfere with Convention rights, and require that, in some circumstances, the state must take active steps to protect people’s rights against interference by others. In addition to the express wording in the ECHR, the courts have implied various positive obligations in order to secure effective rights protection. If individuals are not able to enforce their rights against public bodies as a result of any narrowing interpretation of positive obligations in domestic courts, individuals will be forced to seek a remedy before the ECtHR.

8 Litigation and remedies

172. In its consultation, the Government has put forward a number of proposals that would affect human rights litigation, with a particular focus on remedies. They are of significance because of their implications for the enforcement of human rights. These proposals were not included in the terms of reference the Government had set for IHRAR.

Permission stage

173. The consultation document proposes introducing a new permission stage for human rights claims, requiring the claimant to establish that they have suffered a ‘significant disadvantage’ before they can pursue their claim (potentially with an exception for cases of ‘overriding public importance’).179

Is a permission stage needed?

174. The Government argues that a permission stage is needed to prevent “frivolous or spurious cases” which result in people losing trust in the system of human rights protection and “devalues the concept of human rights.”180 The consultation paper relies in support of this argument on four claims brought against the Government by prisoners (two by the same individual)—all of which were unsuccessful.181 The material objection is essentially that the Government had to bear the costs of defending these claims—which is an inevitable consequence of any legal claim brought by an impecunious claimant.

175. During oral evidence we asked Lord Wolfson to provide us with more evidence of “the scale of the mischief”, including an indication of what percentage of cases brought were found to be “trivial”.182 Lord Wolfson responded in writing, but provided no percentages and only three additional examples of unsuccessful claims brought by prisoners.183

176. We share Elizabeth Prochaska’s view that the evidence base for the creation of this permission stage is “very weak”. She noted that “there is really very little evidence of these spurious claims that the Government claim are being made. There are no figures in this consultation, nor are there figures available on the number of HRA damages claims that are made.”184

Existing controls on spurious cases

177. The law already provides many mechanisms for preventing unjustified human rights claims being brought to the courts:

a) Human rights claims can only be brought by claimants if they are, or would be, the victim of the impugned act—which requires them to have been directly or indirectly affected by the alleged violation.185

b) Judicial review claimants must show that they have “an arguable case” that “merits full investigation”.186

c) In respect of a civil claim for damages under the Human Rights Act, defendants are able to apply to strike out a claim that discloses no reasonable grounds or obtain summary judgment in respect of a claim that is “vexatious, scurrilous or obviously ill-founded.”187 Judges may also act of their own initiative in this regard.188

d) Orders preventing ‘vexatious litigants’ issuing proceedings without prior permission from the court are also available.189

e) In practice, most claimants will be dissuaded from bringing, or unable to bring, trivial claims because of the costs involved. An unsuccessful claimant will generally have to pay their opponent’s legal costs. While this doesn’t usually apply to legally-aided claimants, damages claims for breach of Convention rights by a public authority only come within the scope of legal aid for full representation where the breach of rights is “significant”;190 where the claim has at least moderate (i.e. over 50%) prospects of succeeding;191 and where the likely benefits of the claim are proportionate to the costs.192 This can be expected to exclude cases where no ‘significant disadvantage’ has been experienced.193

Compatibility with ECHR obligations

178. The proposed permission stage will prevent claims being brought by claimants who can show that their human rights have been violated, but can only show that they have suffered something less than a ‘significant disadvantage’ as a result.194 This could result in a failure to comply with obligations imposed by Article 1 ECHR, under which the UK is bound to “secure to everyone within their jurisdiction the rights and freedoms” set out in the Convention, and Article 13 ECHR, which provides a rights to an effective remedy for a violation of Convention rights. This risk would be lessened by the inclusion of an exception to the need to show ‘significant disadvantage’ based on ‘overriding public importance’, which is a possibility put forward in the consultation document. Nevertheless, this implies a very high threshold that many genuine human rights victims will be unable to meet.

179. The consultation document points to the fact that the ECtHR has itself introduced a requirement for applicants to demonstrate that they have suffered “significant disadvantage” as part of the admissibility stage of any claim.195 This requirement has been interpreted narrowly, but in any event the imposition of a threshold at the international level does not mean that it is acceptable to impose the same threshold for domestic claims.196 This point was made to us by Elizabeth Prochaska:

Strasbourg is an international court, so of course it has a different threshold for admissibility than domestic courts. If you were to impose a threshold at domestic level, you would very likely need divergence from Strasbourg judgments … 197

180. The proposed permission stage is unnecessary and likely to be inconsistent with the UK’s obligations under the Convention.

Section 8 HRA – pursuit of rights-based claims

The Government’s proposal

181. Under the heading “Judicial Remedies—Section 8 HRA” the consultation paper describes a proposal to require claimants “to pursue any other claims they may have first, either so that rights based claims would not generally be available where other claims can be made, or in advance of any rights argument being considered, to allow the courts to decide whether the private law claims already provide adequate redress.”198 This idea echoes the proposed prioritisation of statute and common law over human rights law, discussed in Chapter 3 above.199 The detail of the proposal is somewhat opaque, however. It could be interpreted as denying the right to bring a claim under the HRA where an alternative common law claim exists; as requiring the alternative common law claim to be brought before the HRA claim can be pursued; or simply as requiring the courts to deal first with any non-rights based claim before moving on to consider the HRA claim if still necessary.

Implications of the proposal

182. In whichever way the proposal is interpreted, it would involve prioritising non-rights based claims over claims under the HRA. Yet we can see no reason why rights, which the Government maintains that it supports, should not be enforceable.

183. In any event, claimants are already unable to obtain damages for human rights breaches if they have already secured damages for equivalent loss under an alternative cause of action.200 Non-rights based claims will also generally be prioritised by claimants where available because they tend to provide higher levels of damages than claims under the HRA. Furthermore, the courts are already able to consider other claims before human rights claims if they consider the latter add nothing to the dispute.

184. The proposal also does not appear likely to save any court time or legal expense. Common law and Convention rights do not precisely overlap.201 Whether or not a non-rights based claim does indeed cover the same ground as a rights based claim may well be legally complex and controversial. Resolving this issue, particularly at the very beginning of a claim, before evidence has been assessed and arguments considered, is likely to make the proceedings lengthier and more complex. If the result is the claimant being denied an opportunity to have their human rights claim heard, there will inevitably be challenges taken to the ECtHR and, in some cases, a breach of the right to an effective remedy under Article 13 ECHR.

185. Requiring a claimant to pursue their non-rights based claims first, before being able to pursue a human rights claim, would also result in two sets of legal proceedings—with the one based on human rights being delayed until the other had concluded. This would hugely lengthen the litigation process for no obvious gain. Unsuccessful litigants would also be unable to pursue a remedy with the ECtHR until they had exhausted domestic remedies by invoking their ECHR rights in the second set of proceedings, increasing their costs—see further para 50 above. If there was excessive delay this could be inconsistent with Article 6 ECHR (right to a fair trial), which guarantees “a hearing within a reasonable time” and very significant delay might even deprive the claimant of an effective remedy as required by Article 13. Furthermore, in practice, if a claimant had a strong human rights claim it might result in non-HRA claims being dropped to ensure that the HRA claim could be brought in a timely fashion, potentially depriving an individual of their opportunity to bring a statutory or common law claim.

186. Even if the proposal is merely to require the judiciary to consider non-rights based claims before HRA claims, this would represent an unnecessary and unhelpful interference with judicial case management.202 Judges should be free to continue to manage the claims before them in accordance with the interests of justice.

187. The precise nature of the proposal in respect of section 8 HRA, requiring prioritisation of claims that are not based on human rights, is unclear, but on any reading it appears that the disadvantages clearly outweigh any advantages it might provide.

Damages

188. The consultation paper proposes that when considering whether to award damages to a successful claimant, the courts should be required to take into account the impact of that award on the provision of public services and other factors designed to represent the ‘wider public interest’ rather than the interests of the victim.

189. While damages and costs can be inconvenient for public authorities, they can most obviously and easily be avoided through compliance with the law, including the obligation to act compatibly with human rights imposed by the HRA. Indeed, the desire to avoid costly damages may be a useful tool in ensuring public authorities meet their human rights obligations. It is not clear how an individual is to be provided with an effective remedy for the violation of their human rights if the responsible public authority were to be excused from paying damages.

190. In any event, under the HRA, the courts’ ability to award damages is limited to the cases in which they consider them necessary to afford the claimant “just satisfaction”.203 In considering damages the courts are also already required to take into account the principles applied by the ECtHR.

191. This means that the courts, when exercising their remedial discretion, already take into account the overall context, which includes both the impact on the individual and the wider implications.204 To go further, as the consultation paper proposes, and specify in the HRA that the courts must take into account matters plainly in favour of the defendant, including “the impact on the provision of public services” and “where the public authority was trying to give effect to the express provisions, or clear purpose, of legislation”, risks unbalancing the ‘equitable’ exercise of judgment by the courts and puts at risk compliance with Article 13.

192. The courts already have sufficient flexibility when considering damages in human rights claims, allowing them to take into account the wider context. The Government’s proposal could unbalance the ‘equitable’ exercise of judgment by the courts, and put at risk the UK’s compliance with the right to an effective remedy, and should be rejected.

Taking into account the conduct of the claimant

193. The consultation paper proposes that damages in human rights claims may be reduced or removed on account of the claimant’s conduct—either specifically confined to the circumstances of the case or wider conduct of uncertain scope. This proposal is designed to “build an element of responsibility explicitly into the Bill of Rights.”205 We agree with Professor Gearty who commented that “there is a whiff of people needing to have earned their human rights” about this discourse.206

Principled concerns

194. While Lord Wolfson reminded us that the proposal relates to “remedies and not rights”, depriving an individual of a remedy for a breach of their rights risks making that right worthless.207 The ECHR guarantees rights that are “practical and effective” not “theoretical and illusory” and the HRA, or Bill of Rights, must do the same.208

195. As the consultation paper notes, it has previously been acknowledged in the ECtHR and domestic judgments that, as part of the ‘equitable’ approach to human rights damages, a victim’s conduct may in some circumstances be of relevance to the award made. This principle, however, appears to be of limited application. The central ECtHR authority is McCann v UK from 1995, a claim brought in respect of the deaths of IRA terrorists killed in a military operation to prevent a bomb attack in Gibraltar.209 It was accepted that the men were intending to plant a bomb, and in these specific and extreme circumstances the Court decided that awarding damages would be inappropriate.210 This case is therefore authority for very serious criminal conduct, closely related to, if not specifically causative of, the breach in question being relevant to the award of damages. It can be contrasted with numerous other ECtHR judgments in which damages were awarded to claimants despite them having been found to have failed to meet their ‘responsibilities’ (including by committing serious criminal offences).211

196. The proposal to include in the Bill of Rights an express reference to reducing or removing damages based on the conduct of the claimant, even if confined to the circumstances of the case, risks going further than ECtHR authority provides and placing undue emphasis on the claimant’s conduct over other relevant matters. Substantially more concerning is the suggestion that wider conduct, beyond the circumstances of the claim, be taken into account to reduce damages, because this more directly threatens the principle of the universality of human rights.

The Universality of Human Rights

Human rights are universal, meaning they apply to everyone. Their protection is inherent in the human condition and they reflect standards below which no State actor should drop. How human rights are applied and how competing rights are balanced may vary depending on the context, but that does not affect their universal nature.212 As Elizabeth Prochaska told us:

The clue to what human rights are is in the name: they are human rights; they are universal and exist because of our humanity, not because of what we have done as people in our lives. There are really no qualifiers to that.213

197. As Elizabeth Prochaska warned, this proposal to take into account the wider conduct of the claimant when considering damages, along with other proposals in the consultation paper, such as those relating to deportation “point us down a path of a very dangerous attempt to distinguish between good and bad people, when we all know that these rights are meant to be universal.”214

198. Human rights by their nature are universal—they are inherent in the human condition. Any efforts to categorise certain groups of people as being less deserving of human rights protection is contrary to the very concept of human rights and should form no part of our laws.

Practical implications

199. In addition to principled concerns, a number of significant practical questions arise, which cast into doubt the workability of the proposal to take into account the wider conduct of claimants when considering damages. The consultation paper does not address what kind of ‘conduct’ will be deemed relevant. It appears, however, that it is not intended to limit the proposal to criminal convictions. It is also unclear how far back the courts should go—any set period would be arbitrary but failing to impose a period could cast the net impracticably wide. How will the court establish whether the impugned conduct actually happened, in the absence of a criminal conviction? Will there be trials within trials to establish the truth of an allegation of historic ‘improper’ conduct? How will the court weigh up the claimant’s negative conduct against their positive conduct? How will the court deal with individuals whose conduct stems from their own status as a victim—such as trafficked or exploited children?215 None of these questions suggest easy answers.

200. The proposal that a Bill of Rights should provide for damages to be reduced or removed on account of the claimant’s conduct, specifically confined to the circumstances of the claim, is unnecessary, and risks unbalancing the equitable approach to damages currently taken by the courts. To extend that proposal to wider conduct outside the circumstances of the case would constitute an indirect but dangerous attack on the fundamental universality of human rights and should be rejected.

9 Strengthening rights

Freedom of Expression

Has the ECtHR given priority to privacy over freedom of expression?

201. The Government contends that the ECtHR has given priority to privacy rights at the expense of freedom of expression, citing ML v Slovakia in support.216 The Government states that, in this case, the ECtHR found that “media reporting about a deceased priest’s convictions for child sexual abuse and public indecency could interfere with his mother’s right to private life, drawing, in part, on the so-called ‘right to be forgotten’ invented by the Court of Justice of the European Union.”217

202. This case does not, in isolation, provide evidence of the ECtHR giving priority to privacy over freedom of expression—on the contrary, the Court undertook a balancing exercise and weighed competing factors in accordance with developed jurisprudence. This case concerned the publication of newspaper articles about the applicant’s deceased son who was convicted of two sexual offences. The ECtHR found that the articles had combined certain elements from the criminal case files of the son’s convictions with frivolous and unverified statements relating to his death and alleged confessions. The articles had been sensationalist and had not made a contribution to the public debate around sexual abuse by Catholic clergymen. Overall, the domestic courts had failed to adequately balance the freedom of expression of the newspapers with the applicant’s right to privacy, leading to a violation of Article 8.218

203. In general, the ECtHR applies a number of key considerations when weighing the right to privacy (Article 8) versus freedom of expression (Article 10): the contribution to a debate of public interest; the degree to which the person concerned is well known; the prior conduct of the person concerned; the content, form and consequences of the publication; the method of obtaining information and its veracity; and the gravity of the penalty imposed on the journalists or publishers.219 The ECtHR considers that the rights under Articles 8 and 10 deserve equal respect. If the balancing exercise has been carried out by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for theirs.220

204. The ECtHR has acknowledged the importance of press freedom, finding that the task of the press is to impart information and ideas on all matters of public interest and that the public has a right to receive this information, ensuring that the press can play its vital role of “public watchdog”.221 In addition, the Court has imposed restrictions on applicants relying on their Article 8 rights. In order for Article 8 to be engaged in defamation cases, an attack on a person’s reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life.222 Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions.223

205. The jurisprudence of the ECtHR demonstrates that: (i) the Court gives precedence to neither Article 8 nor Article 10; (ii) the Court undertakes a balancing exercise between the competing rights which is case-specific, applying general criteria to each case; and (iii) there are restrictions on applicants claiming their Article 8 rights before the Court.

The Government’s Proposals

206. The Government puts forward various options to strengthen freedom of expression within the Bill of Rights. The first is to strengthen section 12(4) HRA224 to provide that freedom of expression is of the “utmost importance” and the courts should only grant relief which impinges freedom of expression where there are “exceptional reasons”. The second is to amend the test in section 12(3) to make it harder to get injunctions by raising the threshold test for courts to apply. The third is to include within the Bill of Rights general guidance for the courts on balancing freedom of expression versus privacy and other wider interests. This would include a presumption in favour of upholding the right to freedom of expression, subject to exceptional grounds. The fourth is to increase protections for journalists’ sources.225

Section 12 HRA

207. Section 12 HRA emphasises that the courts must pay due regard to Article 10 and the right to freedom of expression contained therein. Section 12 applies when a court is considering the granting of “relief” that might affect freedom of expression.

Proposal to replace section 12(4)

208. At present, section 12(4) imposes a duty on the courts to have particular regard to the importance of freedom of expression. The Government’s first proposal is to replace section 12(4) HRA with a stronger provision to provide that freedom of expression is of the “utmost importance” and the courts should only grant relief which impinges freedom of expression where there are “exceptional reasons”.226 Given the importance that the courts already attach to the protection of free speech, it is not clear what effect this amendment would have. Where competing qualified rights are engaged, the courts will still need to undertake a balancing exercise to ensure all rights are respected.

209. The introduction of a test of “exceptional reasons” could create an extremely high threshold for individual claimants seeking to enforce their rights where such rights impinge on freedom of expression. This could create an unprincipled hierarchy of rights, whereby freedom of expression cannot be interfered with except in the most extreme circumstances. Further, it is not clear what would constitute an “exceptional reason”. It would be impossible to legislate for every eventuality. The courts will, therefore, have to determine what falls within the remit of an “exceptional reason”. This will inevitably lead to an initial period of uncertainty for individuals who wish to seek to enforce their rights in competition with the free speech rights of another party.

210. The Government seeks to reorder Convention rights by elevating one above the others. This undermines the philosophy of the Convention which is premised on the fact that all rights contained therein are fundamental (albeit some are absolute, some limited, others qualified). Giving undue priority to freedom of expression in primary legislation could undermine the ability of individuals to enforce their rights to privacy, a fair trial and freedom of assembly and upset the balancing exercise the courts currently undertake when competing rights are engaged.

Proposal to amend section 12(3)

211. Section 12(3) concerns interim injunctions (known in Scotland as interim interdicts), which are provisional measures sought during legal proceedings, before trial takes place, requiring a party to act or refrain from acting in a certain way (e.g. preventing the publication of private material). At present, section 12(3) HRA provides that a court cannot restrain publication of material before trial unless the court is satisfied that the applicant is likely to succeed at trial. The Government may amend the test in section 12(3) to make it harder to get injunctions by raising the threshold test for courts to apply. The Government has not set out what the higher threshold might be.227

212. The Government’s proposals to amend section 12(3) would limit the ability of individuals seeking to enforce their rights, for example, to private and family life, or to a fair trial, where an imminent publication of material could constitute a breach of those rights. The purpose of interim injunctions is to prevent injustice before a trial of the issues can take place. The higher the threshold introduced by the Government, the more likely that injustice and breaches of privacy and fair trial rights will result from the publication of material.

Proposal to provide guidance to the courts and a presumption in favour of freedom of expression

213. The Government proposes to include within the Bill of Rights general guidance for the courts on balancing freedom of expression versus privacy and other wider interests. This guidance would include a presumption in favour of upholding the right to freedom of expression, subject to exceptional grounds.228

214. This proposal would in practice have a similar effect to the first proposal, i.e. the starting point for the courts would be that freedom of expression cannot be infringed—this presumption could only be displaced in exceptional cases. As stated by Lord Hoffman in Campbell v MGN:

Both [Articles 8 and 10] reflect important civilised values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need …229

215. If the Government creates a strong presumption in favour of freedom of expression in primary legislation, this may undermine the balancing exercise which the courts currently undertake when there are competing rights engaged. If the UK falls short in the balancing exercise between two rights which enjoy equal protection under the Convention, the methodology applied by the Court may lead it to find a procedural violation.

Proposal to increase protection of journalists’ sources

216. The Government proposes to make specific provision for journalists’ sources in the Bill of Rights “to make sure they are properly protected”.230 There is no further detail. It is not clear why the Government believes that the current legal framework fails to provide adequate protection for journalists’ sources.231 The recent case in which the Recorder dismissed a police application for former MP Chris Mullin to reveal his sources regarding the perpetrators of the Birmingham pub bombings illustrates the application of the current law.232 Further, the ECtHR has consistently emphasised that Article 10 safeguards not only the substance and contents of information and ideas, but also the means of transmitting it. The Court held in Goodwin v UK that the:

protection of journalistic sources is one of the basic conditions for press freedom. … Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result, the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected. … [A]n order of source disclosure … cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest.233

217. It is not clear why the Government believes the current legal framework for the protection of journalists’ sources is inadequate. The Government ought to publish its reasoning and put forward clear proposals to allow for detailed analysis.

Right to trial by jury

218. The Government believes that there may be scope to recognise trial by jury in the Bill of Rights, given its significant historical place in our legal traditions, and the role it plays in securing the fairness of certain trials. The Government suggests that “the right could apply insofar as trial by jury is prescribed by law in each jurisdiction, under the control of Parliament for England and Wales, and of the Scottish Parliament and the Northern Ireland Assembly for Scotland and Northern Ireland respectively.”234 This differentiation is necessary as although jury trials are a long-standing feature of Scottish criminal procedure, there is no right to a trial by jury—whether a trial will take place before a jury will generally depend on statutory provisions and the decision of the prosecutor.

219. The right to elect a jury trial in certain circumstances is currently provided for within legislation in England and Wales,235 although the origins of this right go back to the Magna Carta 1215, which recognised the right (of some) to be tried by one’s peers. However, this right is not available to all. In England, Wales and Northern Ireland, there are three categories of criminal offences—the categorisation of the offence determines whether a defendant will have the right to elect a jury trial. Defendants charged with summary only offences236 have no right to a jury trial. Defendants charged with indictable only offences237 are sent to the Crown Court for a jury trial automatically. Defendants charged with an either-way offence have the right to elect a jury trial if their case could be tried in either the Magistrates’ Court or the Crown Court.238

220. In evidence, the Minister confirmed to us that the substantive nature of the right will remain unchanged.239 The Minister, when asked the point of including this right in a Bill of Rights, noted that there have been challenges to the right to jury trial in Strasbourg (albeit unsuccessful to date) and that “the concept of a jury is somewhat unusual” in other Convention states.240 This implies that there is some concern that jury trials may not always be considered Article 6 compliant by the ECtHR. However, the ECtHR has noted that several member States have a lay jury system, guided by the legitimate desire to involve citizens in the administration of justice, particularly in relation to the most serious offences. A State’s choice of a particular criminal justice system is in principle outside the scope of the supervision of the ECtHR provided that the system chosen does not contravene the principles set forth in the Convention.241 It is therefore unlikely that any changes to the nature of jury trials in the UK would fall foul of Article 6 as long as the procedural safeguards remain in place.

221. The inclusion of the right to trial by jury in the Bill of Rights would have no obvious legal significance. Its proposed inclusion appears to be symbolic. During the pandemic, the Government suspended jury trials before the Crown Court on the grounds of a public health emergency, which led to inevitable delays to justice. If the British Bill of Rights contained specific protections for the right to trial by jury, the Government may be open to challenge if they seek to reduce the scope of jury trials, or suspend jury trials, in the future.

222. The Government states it is their intention to “create a Bill of Rights for the whole of the United Kingdom, founded on principles common to us all.” However, the right to jury trial does not exist in Scottish procedure. The Bill of Rights would therefore diverge from universality, as not all rights would be given effect in all four jurisdictions. It will be a matter for the Scottish Parliament to determine whether to make any amendments to their criminal justice system.

10 Reducing rights protection

Deportation

Legal framework

223. The Secretary of State has a general power to deport on grounds that someone’s presence in the UK is not conducive to the public good.242 Unless certain circumstances apply, the Home Secretary must make a deportation order against a “foreign criminal”, defined as a non-British citizen who has been convicted of an offence and sentenced to 12 months’ imprisonment as a result.243 There is an exemption if removal of the individual would breach his or her rights under the ECHR or Refugee Convention.244 However, the Government has set tight restrictions on the extent to which Article 8 rights can be argued in deportation cases.245 The applicable rules depend upon the length of sentence. Those convicted of a crime and sentenced to more than 12 months’ imprisonment (but no more than four years) can be deported unless they can show they fall into one of two exceptions:246

a) Exception 1: the claimant has been lawfully resident in the UK for most of the claimant’s life; the claimant is socially and culturally integrated into the UK; and there would be very significant obstacles to claimant’s integration into the country to which the claimant is proposed to be deported.

b) Exception 2: the claimant has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of deportation on the partner or child would be unduly harsh.

224. Those who are convicted of a crime and sentenced to four or more years in prison (or more than 12 months and don’t fit within the exceptions above) will need to show that there are “very compelling circumstances” in their case to outweigh the public interest in their deportation.247 As set out by the Court of Appeal: “the scales are heavily weighted in favour of deportation and something very compelling is required to swing the outcome in favour of a foreign criminal whom Parliament has said should be deported.”248 The bar is already, therefore, set high as to what will outweigh the public interest in deportation. The Government proposes to raise it higher. In support of its proposals, the Government cites a number of cases which are considered in brief below.

Case X

225. The Government does not give any citation for “Case X”, omitting the details “in view of other legal proceedings”.249 Case X concerns a Foreign National Offender (FNO) who successfully appealed against the deportation order on the grounds of Article 8, given her relationship with her child. It would appear that this case predates the changes contained within the Immigration Act 2014 and is therefore no longer of relevance to the existing legal framework.

AD Turkey

226. This case concerns a Turkish national who was convicted of an offence of grievous bodily harm and sentenced to 54 months’ imprisonment in 2018. The Government states: “After protracted litigation, relying on his period of lawful residence and marriage to a UK national, the Upper Tribunal allowed the appeal on Article 8 Convention grounds.”250

227. The Upper Tribunal (UT) applied the relevant statutory framework and undertook a balancing test, finding ultimately in favour of the claimant. The UT took into account that the claimant entered a guilty plea; his actions in committing the offence were very much out of character and he had expressed remorse; he was a model prisoner and was on unconditional bail; he had lived in the UK for over 30 years and is socially and culturally integrated in the UK; he had no ties with Turkey and would have had to start anew if sent there; that he had a genuine and subsisting relationship with his wife and has a close and supportive family unit with his adult children and step-child and grandchildren; that the claimant’s adult son was unwell with Crohn’s disease and was reliant on his father for assistance.251 The UT also found that the public interest in deportation was diminished given, inter alia, the psychological evidence that the claimant posed a low risk of reoffending.252The UT found that this was one of the “rare and exceptional cases” where the deportation would amount to a disproportionate interference with the claimant’s Article 8 rights.253

OO Nigeria

228. The Government cites the case of a Nigerian national who was convicted at trial of two counts of the possession of Class A drugs and the concealment or conversion of criminal property, and sentenced to a total term of imprisonment of four years. In 2017, he pleaded guilty to assault occasioning actual bodily harm and battery and was sentenced to a total of eight months’ imprisonment, to run concurrently with the four-year sentence he was already serving for his earlier convictions. In 2020, the First-Tier Tribunal (FTT) allowed his appeal against deportation on Article 8 grounds and this was subsequently upheld by the UT.

229. The FTT judge found that the claimant had been born in the UK; was socially and culturally integrated into the UK; and there would be very significant obstacles to his integration into Nigeria given he had no knowledge of Nigeria and that deportation would be unjustifiably harsh, taking into account expert evidence on Nigeria.254 Further, the offences were committed seven years prior to the hearing and the claimant had shown genuine remorse, had rehabilitated and had secured employment and posed a low risk of reoffending.255 Finally, the sentence only just reached the top category of offending requiring there to be “very compelling circumstances”.

Othman v UK

230. The Government stated: “the Strasbourg Court overruled the House of Lords [finding] that the right to a fair trial (Article 6) could be asserted by a claimant, regarded by a State Party as involved in serious terrorist activity, to defeat a deportation order … [Th]e 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.”256

231. The Court ruled that Article 6 ECHR would be violated if the applicant were to be deported to Jordan, because there would be a real risk that evidence obtained through torture would be used against him during his retrial which would constitute a “flagrant denial of justice”.257 The threshold for finding a flagrant denial of justice in violation of Article 6 is incredibly high: it requires “a breach of the principles of fair trial which was so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.”258 The ECtHR concluded that “no legal system based upon the rule of law can countenance the admission of evidence—however reliable—which has been obtained by such a barbaric practice as torture.”259 The UK was ultimately able to deport Othman after obtaining assurances from the Jordanian authorities that they would not use evidence obtained by torture in his retrial. The Government’s policy of “Deportation with Assurances” (DWA) has been developed to facilitate the deportation of foreign nationals suspected of terrorism.260

232. These cases cited by the Government show that the domestic courts and the ECtHR take account of both the rights of the individual and the public interest in deportation, applying the stringent tests laid out in the statutory framework. Inevitably there will be cases where the rights of the individual outweigh the public interest in deportation and the Government does not agree with the outcome, but this is not a sufficient justification for reforming the system by further eroding the protection of rights. The current statutory framework creates a high threshold and it will be rare for Article 8 to outweigh the public interest in deportation. Further, Article 6 can only prevent deportation from taking place where there is a real risk that the individual would experience a flagrant denial of justice. This is a very high threshold but an essential safeguard against the practice of torture.

Statistics

233. The statistics cited in the consultation document regarding FNO appeals against deportation orders cover the period from April 2008 to June 2021 and therefore fail to distinguish between cases which occurred before and after important changes to the law in 2014261 and fails to disaggregate between different Articles of the Convention, citing “human rights grounds” in general. The Government states that “expanding human rights restrictions” have frustrated the Government’s ability to deport serious FNOs. However, the Immigration Act 2014 has tightly circumscribed the ability of FNOs to rely on their human rights. It is not clear why the Government contends that “serious problems arising from the Human Rights Act remain.”262

234. We asked Lord Wolfson to request a release of the data underpinning the statistics on FNO appeals in the consultation document. The Home Office published further data on 24 February 2022 which disaggregated the numbers of FNO appeals against deportation by year.263 Although we can now differentiate between cases before and after the Immigration Act 2014, it is still not disaggregated by Convention right (other than a small random sample). Nor is it disaggregated between FNOs who were served with sentences of 1–4 years and those who were served with a sentence of four or more years—this is important as the threshold test for each category is different. Further, the data only relates to appeals to the First-Tier Tribunal and is therefore not determinative of the final outcome of the cases. The data remains of limited value. We urge the Government to ensure that it publishes detailed and disaggregated statistics in order to ensure transparency and enable stakeholders to analyse the evidence base for proposals.

Proposals

235. The Government puts forward three options for reform of deportation rules. Option 1 would provide that certain rights cannot prevent the deportation of a certain category of individual, for example based on a certain threshold such as length of imprisonment.264 This suggests that FNOs who reach a certain threshold would be subject to a blanket denial of certain rights when challenging their deportation. This contravenes the fundamental principle that human rights are universal (see Chapter 8).265 Blanket denials of certain rights for certain categories of person are not Convention-compliant and will lead to breaches of rights and increased litigation before the ECtHR.

236. Option 2 would provide that certain rights can only prevent deportation where provided for in a legislative scheme expressly designed to balance the strong public interest in deportation against such rights.266 This appears to reflect the current position. It is reasonable to expect the courts to respect the Immigration Rules and to give effect to Parliament’s view that there is a strong public interest in the deportation of certain individuals. However, the courts must not be so constrained that they are unable to take into account the rights of the affected individuals, and to weigh these against the public interest in deportation on a case-by-case basis to ensure a just outcome.

237. Option 3 would provide that a deportation decision cannot be overturned unless it is obviously flawed, preventing the courts from substituting their view for that of the Secretary of State.267 This would make it impossible for the courts to overturn a deportation decision in circumstances where the Home Secretary has given consideration to human rights issues unless her decision was “obviously flawed”. In such circumstances, the consideration of human rights could become a tick-box exercise and the decision of the Secretary of State could become effectively untouchable by the courts in all but the most egregious of decisions. This would preclude any meaningful judicial assessment of the proportionality of deportation orders. Given the duty of the Home Secretary to deport individuals where this is deemed to be in the public interest, the Home Secretary is not an independent decision-maker and is not therefore best placed to make a determination on the merits of an individual’s human rights claim.

238. According to ECtHR case law, the UK’s legal framework governing deportations complies with the Convention as it currently allows for a balancing exercise to take place, even if that balancing exercise is weighted in favour of deportation.268 The ECtHR will ordinarily refrain from interfering in the conclusion arrived at by the national authorities, so long as that conclusion was the result of a proper Convention-compliant balancing exercise, which adequately applies the Article 8 case law to the facts of each case.269

239. In order to comply with Convention rights, the courts must be able to undertake a balancing exercise and proportionality assessment when considering FNO deportations. Each of the proposed options for reform would tip the balance even further away from individual rights and strengthen the existing presumption in favour of deportation. If it becomes virtually impossible to displace this presumption, the balancing exercise is rendered null and void.

240. These proposals would: (i) deny FNOs their full Convention rights, thereby undermining the principle of universality of rights; (ii) remove the safeguard of meaningful judicial oversight; and (iii) place important human rights considerations in the hands of the Home Secretary, who is not an independent decision-maker. They are therefore likely to lead to increased litigation and potentially adverse judgments before Strasbourg.

Migration

241. The Government asks: “ how could we more effectively address, at both the domestic and international levels, the impediments arising from the Convention and the Human Rights Act to tackling the challenges posed by illegal and irregular migration?”270

242. The principle of non-refoulement guarantees that no one should be returned to a country where they would face the risk of irreparable harm. Changes to the law which undermine the principle of non-refoulement would violate the UK’s international obligations. It is concerning that the Government perceives legal obligations arising from the Convention and the Human Rights Act as “impediments”. The courts must not be prevented from carrying out an effective assessment of whether removal amounts to a justified interference with rights. We reiterate our concerns with the Nationality and Borders Bill, as set out in our reports on the Bill.

Extra-territorial jurisdiction

243. The Government states that: “we want to protect our armed forces from human rights claims for actions taking place overseas, and avoid the uncertainty of applying different rules in an area already covered by the law of armed conflict. Therefore, our proposals also explore how we can seek to address with partners in Strasbourg the question of the extraterritorial application of the Convention.”271

244. The Convention’s scope is primarily territorial but is not limited to the territory of Convention states. In two broad circumstances, the Convention can apply outside a Convention state’s national territory: (a) where a Convention state has control or authority outside its national territory over an individual; and (b) where a Convention state has effective control or authority over an area outside their national territory.272 Where a Convention state does not want certain articles of the Convention to apply during a time of war or national emergency, it must seek to derogate from those articles under Article 15 of the Convention.273 The current position on scope has allowed, for example, individuals (or their family members) who have suffered torture and inhuman and degrading treatment or who have died at the hands of British military serving overseas to rely on the Convention to obtain a remedy for these violations.274 British soldiers who have been killed or injured as a result of inadequate weapons whilst operating in Iraq have also been able to bring human rights claims against the Government.275

245. The case law of the ECtHR recognises that where a state is exercising effective control over individuals or territory then Convention rights should apply irrespective of location. If states wish to disapply certain provisions of the Convention due to a “war or other emergency” then Article 15 ECHR is available to them. The extraterritorial application of the Convention has been crucial in holding the Government to account for human rights violations of civilians and British soldiers whilst operating overseas. Whilst there may be no harm in undertaking dialogue at the Committee of Ministers to clarify the scope of extraterritorial jurisdiction, any reduction in scope may result in the removal of remedies for human rights violations committed overseas. Rights protections should not be reduced when the state is exercising effective control over individuals or territory just because the state is operating overseas.

11 Human rights and the devolution framework

246. The HRA plays a unique role in the constitutional arrangements of the devolved nations. The role played by the ECHR and the HRA has helped embed a human rights culture in the devolved nations and plays a particularly important role in the peace settlement in Northern Ireland.

Northern Ireland

247. The Belfast/Good Friday Agreement (the GFA) and the principle of respect for human rights guaranteed therein is at the heart of the peace settlement in Northern Ireland.

248. In the 1998 GFA the British Government undertook to “complete incorporation into Northern Ireland law of the [ECHR], with direct access to the courts, and remedies for breach of the Convention.”276 The HRA fulfils the requirement to incorporate the ECHR into Northern Ireland law. The Northern Ireland Act 1998 (NIA), which provides for the devolution arrangements in Northern Ireland, provides that:

a) an Act is outside the competence of the Assembly if it is incompatible with the Convention rights, which has the same meaning as in the HRA, and

b) a Minister or department has no power to act, including making subordinate legislation, in a way that is incompatible with Convention rights.

249. The consultation paper states the Government “remains fully committed to the [GFA] and our proposed reforms will not undermine that settlement.”277 Lord Wolfson also told us that the Government “do not see any undermining of or contradiction to the [GFA] in any of the matters we are consulting on.”278

250. In contrast to the Government, however, the IHRAR Report stated that repealing the HRA and introducing a British Bill of Rights could have a “significant impact” on both the 1998 Agreement and the wider devolution settlement in the UK.279 This view was shared by various stakeholders. For example, the Committee on the Administration of Justice told IHRAR that any weakening of the protections in the HRA would breach the GFA and “potentially destabilise elements of our peace settlement.”280

251. IHRAR also expressed more specific concerns, including that narrowing the scope of section 3 of the HRA, as has now been proposed in the Government consultation, “runs the risk of upsetting the current devolution settlement, and the Northern Ireland Peace Agreement” as it would “reduce the current level of Convention rights protection provided for by the HRA”.281

252. Various proposals in the consultation would weaken the current protections in the HRA, including access to the courts and remedies available for breach of the Convention. The Committee shares IHRAR’s concern that weakening the HRA would have a significant impact on the Belfast/Good Friday Agreement, which in turn risks upsetting the peace settlement in Northern Ireland.

253. The Government must provide more transparent and detailed reasoning regarding how and why it has concluded that the proposals in the consultation are compatible with the Belfast/Good Friday Agreement.

Scotland

254. As in Northern Ireland, the powers of the Scottish Parliament and the Executive are limited by the requirement to act compatibly with human rights. Under section 29 of the Scotland Act 1998, legislation that is incompatible with Convention rights, defined by reference to the HRA, is outside the competence of the Scottish Parliament. Section 57 provides that Scottish Ministers have no power to act incompatibly with Convention rights.

255. There is no clear consensus as to the extent to which human rights are a devolved matter. The Scotland Act prohibits the Scottish Parliament from amending the HRA, however, “observing and implementing … obligations under the Human Rights Convention” is a devolved matter.282 Thus it has been argued that responsibility for the observation and implementation of human rights is at least to some extent devolved to the Scottish Parliament.283

256. In their response to IHRAR, the Scottish Human Rights Commission (SHRC) stated any proposed changes to the HRA would require “very close consideration of the potential impact on the carefully crafted devolution arrangement given the interplay between” the Scotland Act and the HRA.284 This was reiterated by Judith Robertson, Chair of the SHCR, in her evidence to us. She expressed concern that any change to the current framework may have complex implications that are not yet fully understood.285

Wales

257. The Government of Wales Act 2006 provides that Welsh Ministers cannot make subordinate legislation or act in a way which is incompatible with Convention rights. Section 108A(2)(e) provides that a provision in an Act of the Senedd is not law if it is not compatible with Convention rights. The Wales Act 2017 Act also makes clear the Senedd cannot modify the provisions of the HRA,286 however, “observing and implementing … obligations under the Human Rights Convention” is a devolved matter.287

258. In a Written Statement dated 12 January 2022, the Welsh Minister for Social Justice, Jane Hutt MS, and Counsel General and Minister for the Constitution, Mick Antoniw MS, noted the Welsh Government had not been consulted or involved in the preparation of the Government consultation. They further highlighted that the HRA is fundamental to the Welsh devolution settlement (and the other devolution settlements in the UK) and it would be “of the gravest concern” if the UK Government was to “contemplate acting … without the agreement of all of the UK’s national legislatures.”288

Potential for divergence in human rights standards across the devolved nations

259. In the consultation document the Government states it is their intention to “create a Bill of Rights for the whole of the United Kingdom, founded on principles common to us all.”289 However, the Government recognises the various devolution settlements permit the devolved nations to enact legislation relating to human rights issues within devolved policy areas, and that there may be a case for some of the reforms to apply differently in different parts of the UK.290 It, therefore, remains to be seen how far a new Bill of Rights will in fact be “for the whole of the United Kingdom.”

260. In his evidence to us Professor Tomkins supported the Government’s position, stating it reflects the fact that the “United Kingdom sets the floor for our human rights protections across all the nations of the United Kingdom.” He also noted the devolved nations can “raise the ceiling” of human rights protection in areas of devolved competence, as the Scottish Parliament did when passing the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill 2020.291 Although there was a successful legal challenge to parts of this bill which impinged on matters outside the legislative competence of the Scottish Parliament, there was no challenge to the Scottish Parliament’s decision to incorporate the UNCRC which was recognised to be a matter for the Scottish Parliament.292

261. In contrast, Professor Young told us that, given the distinct legal systems across the devolved nations the Government would have to “tread very carefully in thinking about what that common baseline would be.” To that end, Professor Young noted the importance of full engagement and discussion between both the Westminster Government and the devolved Governments and the Westminster Parliament and the devolved legislatures.293

262. On 2 March 2020 the Scottish Government issued a joint statement with the Welsh Government and both Governments wrote to the Lord Chancellor describing the UK Government’s plans to replace the HRA with a Bill of Rights as an “ideologically motivated attack on freedoms and liberties”. They called on the UK Government to listen to evidence from civil society and the legal profession and reverse its proposals. They concluded that “as the Human Rights Act is fundamental to each of the devolution settlements of the UK, it would be a matter of the gravest concern if the UK Government was to contemplate acting in this area without the agreement of all of the UK’s national legislatures.”294 This last comment reflects our recommendation in our Report on IHRAR that the UK Government should not pursue reform of the HRA without the consent of the Scottish Parliament, the Welsh Senedd and the Northern Ireland Assembly.295 In response to that joint statement of the Scottish and Welsh Governments, the Justice Secretary said “These assertions are irresponsible scaremongering. Our plans retain the European Convention on Human Rights, and will reinforce essential rights, including freedom of expression … . Our reforms will also, however, curb abuses of the system and add a healthy dose of common sense, including making it easier to deport foreign criminals—which is in the interests of everyone across the United kingdom.”296

263. Any proposals to amend the HRA must take account of its unique role in the constitutional arrangements of the devolved nations, the implications for the future of the union and the impact of any differing standards of human rights protection across the devolved nations.

264. The Government must engage closely with Northern Irish, Scottish and Welsh stakeholders before putting forward proposals to reform the Human Rights Act.

Appendix 1: Declarations of incompatibility under section 4 HRA, despite a statement of compatibility under section 19(1) HRA

Case

Legislation declared incompatible despite s19 statement297

Summary

1

International Transport Roth GmbH v Secretary of State for the Home Department Court of Appeal; [2002] EWCA Civ 158; 22 February 2002

Section 32 of the Immigration and Asylum Act 1999

The legislative scheme imposing penalties on carriers who intentionally or negligently allowed clandestine entrants into the UK was found to be incompatible with Article 6 (right to a fair trial) and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions).

2

A and others v Secretary of State for the Home Department House of Lords; [2004] UKHL 56; 16 December 2004

Section 23 of the Anti-terrorism, Crime and Security Act 2001

This provision, which provided for the detention of foreign terrorist suspects without charge or trial, was found to be incompatible with Article 14 (right not to be discriminated against) taken with Article 5 (right to liberty) as it was disproportionate and discriminatory on grounds of nationality.

3

R (on the application of Baiai and others) v Secretary of State for the Home Department and another Administrative Court; [2006] EWHC 823 (Admin); 10 April 2006 – upheld by the House of Lords; [2008] UKHL 53; 23 May 2007

Section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 together with the Immigration (Procedure for Marriage) Regulations 2005

The regime that limited the rights of those subject to immigration control to enter into a civil marriage, intended to protect against sham marriages, represented a disproportionate interference with Article 12 (right to marry) and was therefore found to be incompatible.

4

R (on the application of (1) June Wright; (2) Khemraj Jummun; (3) Mary Quinn; (4) Barbara Gambier) v (1) Secretary of State for Health; (2) Secretary of State for Education & Skills Administrative Court; [2006] EWHC 2886 (Admin); 16 November 2006–upheld by the House of Lords; [2009] UKHL 3; 21 January 2009

Care Standards Act 2000 s.82(4)

The provisions of the Care Standards Act 2000, which covered the inclusion of care workers on a list which effectively prevented them from working with vulnerable adults, were found to be unfair and incompatible with Article 6 and Article 8 (right to respect for private and family life).

5

R (on the application of (1) F; (2) Angus Aubrey Thompson) v Secretary of State for the Home Department

Administrative Court; [2008] EWHC 3170 (Admin); 19 December 2008–upheld by the Supreme Court; [2010] UKSC 17; 21 April 2010

Sexual Offences Act 2003, s.82

This provision, which subjected sex offenders sentenced to 30 months or more to notification requirements for the rest of their lives without the opportunity for review, disproportionately interfered with Article 8 and was found to be incompatible.

6

R (on the application of Royal College of Nursing and others) v Secretary of State for Home Department Administrative Court; [2010] EWHC 2761; 10 November 2010

Safeguarding Vulnerable Groups Act (SVGA) 2006, section 4 and para 8 of schedule 3; plus Regs made under the Act

A scheme under which a person convicted or cautioned in respect of certain offences was barred from working with children or vulnerable adults, was found to be incompatible with Article 6 as the listed person was denied the right to make representations in advance.

7

R (on the application of T, JB and AW) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice

Court of Appeal; [2013] EWCA Civ 25; 29 January 2013–upheld by the Supreme Court; [2014] UKSC 35; 18 June 2014

Sections 113A and 113B of the Police Act 1997 (as inserted by section 163 of the Serious Organised Crime and Police Act 2005 and amended by section 97(2) of the Policing and Crime Act 2009 and section 82(1) of the Protection of Freedoms Act 2012)

The disclosure regime inserted into the 1997 Act went beyond what was necessary to achieve its protective purpose and was found to be incompatible with Article 8, as it was neither in accordance with the law nor necessary in a democratic society.

8

R (on the application of Reilly (no.2) and Hewstone) v Secretary of State for Work and Pensions Administrative Court; [2014] EWHC 2182; 4 July 2014–upheld by the Court of Appeal; [2016] EWCA Civ 413; 28 April 2016

Jobseekers (Back to Work Schemes) Act 2013

This Act retrospectively validated regulations and sanctions imposed under them, despite these sanctions being under legal challenge. This was found to amount to an unjustified interference with the challengers’ Article 6 right to a judicial determination.298

9

David Miranda v Secretary of State for the Home Department

Court of Appeal; [2016] EWCA Civ 6; 19 January 2016

Terrorism Act 2000 (c 11) (as amended by Courts Act 2003 (c 39), s 65, Sch 4, para 9, Terrorism Act 2006 (c 11), s 34 and Counter-Terrorism Act 2008 (c 28), s 75(2)(a)), ss 1, 40(1)(b), Sch 5, para 13(1), Sch 7, para 2

The power under the Terrorism Act 2000 to stop and question a person at a port or border area was incompatible with Article 10 (freedom of expression) in respect of journalistic material, as it did not include adequate safeguards against arbitrariness.

10

R (on the application of P and A) v Secretary of State for the Home Department and Others

Administrative Court; [2016] EWHC 89 (Admin); 22 January 2016

Section 113A and 113B of the Police Act 1997 (as inserted by section 163 of the Serious Organised Crime and Police Act 2005 and amended by section 97(2) of the Policing and Crime Act 2009 and section 82(1) of the Protection of Freedoms Act 2012)

The scheme concerning the disclosure of convictions and cautions in the Police Act 1997 Pt V, despite amendments in the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013, remained incompatible with Article 8.

11

R (on the application of G) v Constable of Surrey Police & Others

Administrative Court; [2016] EWHC 295 (Admin); 19 February 2016–upheld by the Supreme Court – [2019] UKSC 3; 30 January 2019

Section 113B of the Police Act 1997 (as inserted by section 163 of the Serious Organised Crime and Police Act 2005 and amended by section 97(2) of the Policing and Crime Act 2009 and section 82(1) of the Protection of Freedoms Act 2012)

The statutory regime requiring disclosure of historic reprimands to potential employers seeking enhanced disclosure was incompatible with Article 8, given the lack of procedural safeguards to ensuring relevance and proportionality.

12

Z (A Child) (no.2) Family Court; [2016] EWHC 1191 (Fam); 20 May 2016

Human Fertilisation and Embryology Act 2008 s.54(1) and s.54(2)

Provisions that prevented a father from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple were found to be discriminatory and incompatible with the rights of a father and child under Article 14 taken together with Article 8.

13

R (on the application of Johnson) v Secretary of State for the Home Department Supreme Court; [2016] UKSC 56; 19 October 2016

Immigration Act 2014 Sch.9 para.70

The Supreme Court found that it was discriminatory and incompatible with Article 14, read with Article 8, to impose a good character requirement on individuals who would, but for their parents’ unmarried status, have automatically acquired citizenship at birth.

14

Consent Order in R (on the application of David Fenton Bangs) v Secretary of State for the Home Department Administrative Court; 4 July 2017 (claim number CO/1793/2017)

Section 47(1) of the Borders Citizenship and Immigration Act 2009 (c. 11), insofar as it introduced into the British Nationality Act 1981 a new section 41A applying a good character test to applications for registration under section 4C of the 1981 Act.

The application of the good character requirement to persons born to unmarried parents in respect of registration pursuant to section 4C was agreed to be incompatible with Article 14, taken with Article 8.

15

Steinfeld and another v Secretary of State for International Development Supreme Court; [2018] UKSC 32; 27 June 2018

Civil Partnership Act 2004, s.1 and s.3

The provisions of the Civil Partnership Act 2004 that precluded different-sex couples from entering into civil partnerships, were incompatible with Article 14 taken with Article 8.

16

K (A Child) v Secretary of State for the Home Department Administrative Court; [2018] EWHC 1834 (Admin); 18 July 2018

Section 50(9A) of the British Nationality Act 1981 – as substituted by section 9(1) of the Nationality, Immigration and Asylum Act 2002 and section 56 of and paragraph 22 of Schedule 6 to the Human Fertilisation and Embryology Act 2008

The legislative scheme which, for the purposes of establishing nationality, deemed a child’s father to be the man the mother was married to at the time of birth rather than the biological father of the child was discriminatory and incompatible with Article 14 taken with Article 8.

17

Siobhan McLaughlin, Re Judicial Review (Northern Ireland) Supreme Court; [2018] UKSC 48; 30 August 2018

Section 39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, as amended by Welfare Reform and Pensions (Northern Ireland) Order 1999 (SI 1999/3147) (NI 11), art 52(2), Civil Partnership Act 2004 (c 33), Sch 24, para 74 and Child Benefit Act 2005 (c 6), s 2, Sch 1, para 29)

The legislation governing widowed parent’s allowance discriminated against a surviving partner of the deceased who had not been married, and was found to be incompatible with Article 14 taken with Article 8.

18

Jackson and Simpson v Secretary of State for Work and Pensions Administrative Court; [2020] EWHC 183 (Admin); 7 February 2020

Section 30(4)(a) of the Pensions Act 2014, read with section 30(1)

The legislation governing higher rate Bereavement Support Payment discriminated against a surviving partner of the deceased who had not been married, and was found to be incompatible with Article 14 taken with Article 8.

19

In the matter of an application by ‘JR111’ for judicial review (ruling on remedy) Queen’s Bench Division (NI); substantive judgment [2021] NIQB 48 on 13 May 2021; ruling on remedy 21 May 2021

Gender Recognition Act 2004, sections 2(1)(a) and 25(1)

The requirement in the Gender Recognition Act 2004 that an applicant for a gender recognition certificate (GRC) had to provide a diagnosis of gender dysphoria by means of specified medical evidence was found to be incompatible with Article 8.

Conclusions and recommendations

Background to Human Rights Act reform

1. The proposals in the Government consultation are far reaching, complex and in some instances, views are sought on numerous options for reform. (Paragraph 9)

2. Given the constitutional importance of the HRA, any eventual legislation reforming or repealing it should be laid as a draft bill to enable pre-legislative scrutiny. (Paragraph 9)

Successes of the Human Rights Act and the case for a Bill of Rights

3. We are disappointed that the Government consultation does not consider how the enforcement of human rights other than by court action could be strengthened. (Paragraph 19)

4. The Government must look at ways to spread best practice in human rights compliance across the public sector including through training and information programmes. (Paragraph 19)

5. We support IHRAR’s conclusion that the Government should develop an effective programme of civic and constitutional education. (Paragraph 22)

6. This should be implemented without delay by the Department of Education, with support from the Ministry of Justice if necessary. (Paragraph 22)

7. A Bill of Rights should be designed to strengthen, not weaken human rights protection. We see no real case for changing the HRA and little benefit of a rebranding exercise. What might be preferable is more political leadership in championing respect for human rights as a core part of our constitution and values. The Government should consider very carefully whether there is a compelling case for substantial reform, given the upheaval, legal uncertainty and cost that a new Bill of Rights would involve. (Paragraph 26)

Section 2 HRA and the Courts

8. Section 2 HRA plays a crucial role in ensuring that UK judges have regard to matters that are relevant to cases before them, without unduly constraining them in their deliberations. It thus plays a vital role in ensuring that UK reasoning is fully understood by the ECtHR and, therefore, that the UK is accorded the full margin of appreciation available. It also facilitates a very healthy state of judicial dialogue, thus enabling UK judicial reasoning to have a significant impact on ECtHR reasoning. It also means that our courts take the action necessary to ensure that UK cases do not need to end up in Strasbourg. As such, section 2 HRA should be retained and we do not see any need to amend it. (Paragraph 33)

9. The approach to applying human rights principles needs to be sufficiently flexible to stand the test of time. Human rights law must be able to evolve and adapt to changing circumstances. Disconnecting the application of human rights from the way they have been applied to modern societal circumstances by the relevant caselaw of the UK Courts and the ECtHR will not benefit people in the UK. There is no place in a modern Bill of Rights for an approach which would give effect to rights as they would have been understood and applied to a 1950s society. Such a premise is not consistent with the UK’s human rights obligations, the nature of fundamental human rights, or the nature of the common law. (Paragraph 43)

10. If, following engagement with stakeholders and relevant national and local institutions, the UK Government considers that the way that specific rights are applied merits further reflection, it should engage with international partners in discussions about those issues rather than seeking a unilateral approach when it comes to the protection of basic, fundamental human rights. (Paragraph 45)

11. The Courts in the UK are not, and should not, be constrained in their ability to rely on relevant or useful sources for interpreting human rights obligations, including international sources. To the extent that the options proposed by the Government seem to be encouraging or enabling the courts to look at such sources, they would seem to be unnecessary. To the extent that they seem to be unduly prescriptive in setting out the methodological approaches to be applied by the judiciary, they risk interfering unnecessarily with the judicial function and should be avoided. (Paragraph 47)

12. More might be done to improve the visibility, accessibility and enforceability of common law fundamental rights. However, any proposal to prioritise consideration of non-Convention rights and consider human rights protected under the HRA as a secondary matter raises a number of practical difficulties, increasing litigation costs and unduly hampering the normal functioning of the courts, and therefore should be avoided. (Paragraph 51)

13. We do not support either of the proposed options to amend section 2 HRA. There are significant disadvantages and no real advantages in pursuing either option. Both options would appear likely to increase legal uncertainty, with resultant impacts of increasing the cost and time of litigation to resolve such uncertainty. The options increase the likelihood of individuals needing to pursue their claims in Strasbourg. There are also risks that any such amendments would reduce the likelihood that UK judgements can be readily understood in terms of ECtHR analysis and thus risk more adverse ECtHR judgments against the UK. (Paragraph 55)

14. The doctrine of judicial restraint is very effective. The principle of comity is part of our constitutional culture and it is unlikely to be improved upon by legislating. Legislating for certain areas to fall outside the institutional competence of UK courts could risk unintended consequences, such as impeding access to justice. It could upset the delicate constitutional balance of upholding both parliamentary sovereignty and the rule of law. (Paragraph 60)

Compatibility of legislation with human rights: Sections 3 and 19

15. Section 19 HRA statements of compatibility are a vital tool in understanding the Government’s intention and in assisting Parliament’s scrutiny of Bills for human rights compatibility, as well as in improving transparency. The section 19(1) obligation should be retained. However, it would improve parliamentary scrutiny if the obligation in section 19(1) were to bite upon introduction, rather than second reading of a Bill. (Paragraph 69)

16. A revision of section 19 HRA to place the requirement to provide Parliament with an ECHR memorandum on a statutory footing could help to improve the timely provision of these explanations. Such a Memorandum should be provided upon introduction of a Bill, showing the Government’s analysis of the human rights compatibility of the provisions of the Bill. It would also help to have clearer indications within this analysis as to whether the Government is proposing that the UK benefit from a wide margin of appreciation. (Paragraph 70)

17. The Government should reflect and engage with both Houses of Parliament on how business is managed to enable effective and timely scrutiny of a Bill for human rights compatibility. (Paragraph 72)

18. We cannot see any significant value in amending section 19(1)(b) to separate out different limbs of this statement. Improved debates on section 19(1)(b) can most usefully be achieved through thorough and well-set out explanations accompanying a section 19(1)(b) statement. (Paragraph 74)

19. It would not be useful for someone other than the Minister proposing the Bill to make a section 19(1) statement, not least as it is Government and the Minister that have had the benefit of time to undertake the necessary analysis when developing the proposals in the Bill. (Paragraph 76)

20. We consider that some further thought might be given, in respect of Bills likely to be complex or controversial from a human rights perspective, to seeking an expert opinion on a Bill or draft Bill from either a national or international institution. (Paragraph 78)

21. Section 19(1) statements and their accompanying explanations should be extended to cover compatibility with all applicable human rights standards, including the common law and international obligations binding the UK that affect human rights and that are relevant to the subject matter of the Bill. (Paragraph 80)

22. Adequate explanations setting out human rights compatibility analysis should be routinely provided in the Explanatory Memoranda accompanying statutory instruments, alongside the compatibility statements in those Memoranda. (Paragraph 82)

23. We agree with the IHRAR Report’s conclusion that there is no real evidence to suggest that the UK courts are misusing section 3. By only adopting interpretations that are consistent with the scheme of the legislation, the courts are balancing respect for Parliamentary sovereignty with effective protection for human rights. Repealing section 3 would create uncertainty in the law and substantially weaken the protection of human rights in the UK, both in the courts and through the wider culture of rights. Replacing section 3 with lesser interpretive obligations would have the advantage of greater certainty, but otherwise would be likely to result in similar damage to the protection of human rights in the UK. (Paragraph 98)

24. We support the proposal from the IHRAR report that a system be introduced for ex gratia payments where declarations of incompatibility are made, as this would mitigate some of the disadvantages of the declaration for the immediate claimant by providing them with some relief. (Paragraph 99)

Remedying incompatibility: Sections 4 and 10

25. We disagree with the Government’s proposal that the courts should be able to make declarations of incompatibility in respect of secondary legislation (beyond the limited circumstances already provided for in section 4(3) and (4) HRA). (Paragraph 108)

26. Human rights provide protection against abuse of power by the State and should have a special place within the domestic legal order. The Human Rights Act gives human rights a central place in the UK constitution, whilst nonetheless respecting parliamentary sovereignty. It is important that any reforms do not upset this delicate balance. (Paragraph 110)

27. We see no reason why suspended and prospective only quashing orders, if introduced, would not apply to judicial reviews concerning human rights. We reiterate our view that the use of these orders should be a matter of judicial discretion and that they must not be used in such a way that would deprive of an effective remedy a victim of a human rights violation. (Paragraph 111)

28. Remedial Orders can be a useful tool for remedying human rights breaches. As such, the Committee supports the option put forward by the Government of retaining the remedial power to assist in addressing human rights violations. (Paragraph 115)

29. It could be useful to consider shortening the timeframes for remedial Orders to make the remedial process more expeditious. The first timeframe could perhaps be shortened from 60 days to 50 days for the first report in respect of a proposed draft remedial order; and the second one from 60 days to 30 days. Similarly, that would mean that the overall time for the urgent process could be 80 days. That should still be achievable for this Committee to report, provided resources are allocated appropriately. However, we would note that the most significant delay with remedial orders tends to be waiting for the Government to decide on how to address an incompatibility, which can take many years. It may therefore be more useful to consider how to expedite Governmental decision-making, perhaps through a more formal process of engagement with Parliament in setting a deadline for remedying incompatibilities. (Paragraph 117)

30. A more structured system should be established to ensure strong collaboration between Government and Parliament in taking timely action to resolve human rights violations. Following a declaration of incompatibility, the responsible Minister should write to the Committee setting out his proposed timetable and method for addressing that incompatibility. The Committee can then consider and agree that timetable with the Government, and can then help to hold both Government and other actors to account in taking timely action to address such violations. (Paragraph 121)

31. The Committee is concerned that option (d) of removing the remedial power (and probably option (c) of removing the non-urgent procedure) would, without separate measures to enable legislation to be brought swiftly, lead to persistent human rights violations and incompatibilities in the UK being unresolved or taking too long to resolve. (Paragraph 125)

32. Were either option (c) or (d) to be contemplated, the Government and Parliament need to work together to devise a way of ensuring a timely response to addressing human rights breached in the UK. (Paragraph 127)

33. A more structured system should be established to ensure strong collaboration between Government and Parliament in taking timely action to resolve human rights violations. Following an adverse ECtHR judgment, the responsible Minister should write to this Committee setting out his proposed timetable and method for resolving a judgment. We can then consider and agree that timetable with the Government, and can help to hold both Government and other actors to account in taking timely action to address such violations. (Paragraph 131)

34. The inclusion of a reference in statute to a discretionary, seemingly pre-existing power to table a motion is legally unnecessary and would risk opening its use, or lack of use, to debate and possibly challenge before the courts. Whilst we encourage more time to be given to considered debates in Parliament in relation to respect for human rights, we cannot see that this provision is necessary or particularly constructive in that regard. (Paragraph 134)

Qualified rights and limited rights and proportionality

35. We do not agree that the application of the principle of proportionality has given rise to significant problems in practice. It is a valuable tool that is necessary to the understanding and enforcement of qualified rights under the ECHR. The proposed changes to the court’s assessment of proportionality are neither necessary nor beneficial. If too much emphasis is placed on the assessment of proportionality or public interest by the legislature, the court may be inhibited in its ability to carry out the proportionality assessment itself. This risks Parliament and the executive trespassing on the Court’s constitutional function, thereby damaging the separation of powers. It also risks victims being denied their rights without justification. (Paragraph 144)

Duties on Public authorities

36. The relevant factors to be applied in order to determine when functions are of a public nature is now a settled matter set out clearly by the case law. As there is no universally agreed test to determine whether a function is of a public nature, the weighing of relevant factors is a matter best left to be determined by the courts. It is therefore unlikely that seeking to redefine “public authorities” in legislation will assist with clarity. If anything, it may risk introducing more ambiguity, as the courts will have to start again with interpreting a new provision. (Paragraph 151)

37. We would not support any redraft or clarification of the definition of public authorities in statute that would seek to narrow the existing definition of the state so as to erode human rights protections. The State should not evade its responsibility to safeguard Convention rights by delegation to private bodies or individuals. (Paragraph 152)

38. Section 6 HRA respects parliamentary sovereignty by allowing public authorities a defence when they are acting in accordance with legislation that allows for no discretion or where legislation cannot be interpreted compatibly with Convention rights. It is not clear, therefore, why the Government is concerned that this provision requires amendment. (Paragraph 159)

39. The proposed options would reduce rights protections for individuals. Section 6 HRA places human rights front and centre of public authorities’ approach to providing services, helping to create a human rights culture. Any weakening of this duty is likely to undermine human rights culture within public authorities and would leave individuals with no choice but to pursue their claims in court. (Paragraph 160)

40. The wider the ambit of the defence in section 6(2), the more likely that there will be an increase in cases where the UK is failing to provide an effective domestic remedy for any breach of Convention rights as required by Article 13 of the Convention. (Paragraph 161)

41. Positive obligations are a central principle of the Convention. Positive obligations go beyond a duty not to interfere with Convention rights, and require that, in some circumstances, the state must take active steps to protect people’s rights against interference by others. In addition to the express wording in the Convention, the courts have implied various positive obligations in order to secure effective rights protection. If individuals are not able to enforce their rights against public bodies as a result of any narrowing interpretation of positive obligations in domestic courts, individuals will be forced to seek a remedy before the ECtHR. (Paragraph 170)

Litigation and remedies

42. The proposed permission stage is unnecessary and likely to be inconsistent with the UK’s obligations under the Convention. (Paragraph 179)

43. The precise nature of the proposal in respect of section 8 HRA, requiring prioritisation of claims that are not based on human rights, is unclear, but on any reading it appears that the disadvantages clearly outweigh any advantages it might provide. (Paragraph 186)

44. The courts already have sufficient flexibility when considering damages in human rights claims, allowing them to take into account the wider context. The Government’s proposal could unbalance the ‘equitable’ exercise of judgment by the courts, and put at risk the UK’s compliance with the right to an effective remedy, and should be rejected. (Paragraph 191)

45. Human rights by their nature are universal—they are inherent in the human condition. Any efforts to categorise certain groups of people as being less deserving of human rights protection is contrary to the very concept of human rights and should form no part of our laws. (Paragraph 198)

46. The proposal that a Bill of Rights should provide for damages to be reduced or removed on account of the claimant’s conduct, specifically confined to the circumstances of the claim, is unnecessary, and risks unbalancing the equitable approach to damages currently taken by the courts. To extend that proposal to wider conduct outside the circumstances of the case would constitute an indirect but dangerous attack on the fundamental universality of human rights and should be rejected. (Paragraph 200)

Strengthening rights

47. The jurisprudence of the ECtHR demonstrates that (i) the Court gives precedence to neither Article 8 nor Article 10; (ii) the Court undertakes a balancing exercise between the competing rights which is case-specific, applying general criteria to each case; and (iii) there are restrictions on applicants claiming their Article 8 rights before the Court. (Paragraph 205)

48. The Government seeks to reorder Convention rights by elevating one above the others. This undermines the philosophy of the Convention which is premised on the fact that all rights contained therein are fundamental (albeit some are absolute, some limited, others qualified). Giving undue priority to freedom of expression in primary legislation could undermine the ability of individuals to enforce their rights to privacy, a fair trial and freedom of assembly and upset the balancing exercise the courts currently undertake when competing rights are engaged. (Paragraph 210)

49. The Government’s proposals to amend section 12(3) would limit the ability of individuals seeking to enforce their rights, for example, to private and family life, or to a fair trial, where an imminent publication of material could constitute a breach of those rights. The purpose of interim injunctions is to prevent injustice before a trial of the issues can take place. The higher the threshold introduced by the Government, the more likely that injustice and breaches of privacy and fair trial rights will result from the publication of material. (Paragraph 212)

50. If the Government creates a strong presumption in favour of freedom of expression in primary legislation, this may undermine the balancing exercise which the courts currently undertake when there are competing rights engaged. If the UK falls short in the balancing exercise between two rights which enjoy equal protection under the Convention, the methodology applied by the Court may lead it to find a procedural violation. (Paragraph 215)

51. It is not clear why the Government believes the current legal framework for the protection of journalists’ sources is inadequate. The Government ought to publish its reasoning and put forward clear proposals to allow for detailed analysis. (Paragraph 217)

52. The inclusion of the right to trial by jury in the Bill of Rights would have no obvious legal significance. Its proposed inclusion appears to be symbolic. During the pandemic, the Government suspended jury trials before the Crown Court on the grounds of a public health emergency, which led to inevitable delays to justice. If the British Bill of Rights contained specific protections for the right to trial by jury, the Government may be open to challenge if they seek to reduce the scope of jury trials, or suspend jury trials, in the future. (Paragraph 221)

53. The Government states it is their intention to “create a Bill of Rights for the whole of the United Kingdom, founded on principles common to us all.” However, the right to jury trial does not exist in Scottish procedure. The Bill of Rights would therefore diverge from universality, as not all rights would be given effect in all four jurisdictions. It will be a matter for the Scottish Parliament to determine whether to make any amendments to their criminal justice system. (Paragraph 222)

54. We urge the Government to ensure that it publishes detailed and disaggregated statistics in order to ensure transparency and enable stakeholders to analyse the evidence base for proposals. (Paragraph 234)

55. In order to comply with Convention rights, the courts must be able to undertake a balancing exercise and proportionality assessment when considering FNO deportations. Each of the proposed options for reform would tip the balance even further away from individual rights and strengthen the existing presumption in favour of deportation. If it becomes virtually impossible to displace this presumption, the balancing exercise is rendered null and void. (Paragraph 239)

56. These proposals would (i) deny FNOs their full Convention rights, thereby undermining the principle of universality of rights; (ii) remove the safeguard of meaningful judicial oversight; and (iii) place important human rights considerations in the hands of the Home Secretary, who is not an independent decision-maker. They are therefore likely to lead to increased litigation and potentially adverse judgments before Strasbourg. (Paragraph 240)

57. The principle of non-refoulement guarantees that no one should be returned to a country where they would face the risk of irreparable harm. Changes to the law which undermine the principle of non-refoulement would violate the UK’s international obligations. It is concerning that the Government perceives legal obligations arising from the Convention and the Human Rights Act as “impediments”. The courts must not be prevented from carrying out an effective assessment of whether removal amounts to a justified interference with rights. We reiterate our concerns with the Nationality and Borders Bill, as set out in our reports on the Bill. (Paragraph 242)

58. The case law of the ECtHR recognises that where a state is exercising effective control over individuals or territory then Convention rights should apply irrespective of location. If states wish to disapply certain provisions of the Convention due to a “war or other emergency” then Article 15 ECHR is available to them. The extraterritorial application of the Convention has been crucial in holding the Government to account for human rights violations of civilians and British soldiers whilst operating overseas. Whilst there may be no harm in undertaking dialogue at the Committee of Ministers to clarify the scope of extraterritorial jurisdiction, any reduction in scope may result in the removal of remedies for human rights violations committed overseas. Rights protections should not be reduced when the state is exercising effective control over individuals or territory just because the state is operating overseas. (Paragraph 245)

Human rights and the devolution framework

59. Various proposals in the consultation would weaken the current protections in the HRA, including access to the courts and remedies available for breach of the Convention. The Committee shares IHRAR’s concern that weakening the HRA would have a significant impact on the Belfast/Good Friday Agreement, which in turn risks upsetting the peace settlement in Northern Ireland. (Paragraph 252)

60. The Government must provide more transparent and detailed reasoning regarding how and why it has concluded that the proposals in the consultation are compatible with the Belfast/Good Friday Agreement. (Paragraph 253)

61. Any proposals to amend the HRA must take account of its unique role in the constitutional arrangements of the devolved nations, the implications for the future of the union and the impact of any differing standards of human rights protection across the devolved nations. (Paragraph 263)

62. The Government must engage closely with Northern Irish, Scottish and Welsh stakeholders before putting forward proposals to reform the Human Rights Act. (Paragraph 264)

Formal minutes

Wednesday 30 March 2022

Hybrid Meeting

Members present:

Joanna Cherry MP, in the Chair

Lord Brabazon of Tara

Lord Dubs

Florence Eshalomi MP

Lord Henley

Baroness Ludford

Baroness Massey of Darwen

Dean Russell MP

Lord Singh of Wimbledon

Human Rights Act Reform

Draft Report (Human Rights Act Reform), proposed by the Chair, brought up and read.

Ordered, That the Chair’s draft Report be read a second time, paragraph by paragraph.

Paragraphs 1 to 264 read and agreed to.

Appendix and Summary agreed to.

Resolved, That the Report be the Thirteenth Report of the Committee to both Houses.

Ordered, That the Chair make the Report to the House of Commons and that the Report be made to the House of Lords.

Ordered, That embargoed copies of the Report be made available, in accordance with the provisions of Standing Order No. 134.

Adjournment

Adjourned till 11 May 2022 at 2.45pm.

Declaration of interests

Lord Brabazon of Tara

  • No relevant interests to declare

Lord Dubs

  • Former Chair of Liberty

Lord Henley

  • No relevant interests to declare

Baroness Ludford

  • No relevant interests to declare

Baroness Massey of Darwen

  • No relevant interests to declare

Lord Singh of Wimbledon

  • No relevant interests to declare

Witnesses

The following witnesses gave evidence. Transcripts can be viewed on the inquiry publications page of the Committee’s website.

Wednesday 26 January 2022

Lord Mance, Former Justice, The Supreme Court of the United Kingdom; Professor Alison Young, Sir David Williams Professor of Public Law, University of Cambridge; Professor Adam Tomkins, John Millar Chair of Public Law, Glasgow University; Dr Hélène Tyrrell, Lecturer, Newcastle UniversityQ1–11

Wednesday 2 February 2022

The Lord Wolfson of Tredegar QC, Minister, Ministry of JusticeQ12–29

Wednesday 9 February 2022

Professor Conor Gearty QC, Professor of Human Rights Law, The London School of Economics; Elizabeth Prochaska, Barrister, 11 King’s Bench Walk; Schona Jolly QC, Barrister, Clositers Chambers; Caoilfhionn Gallagher QC, Barrister, Doughty Street ChambersQ30–48


Published written evidence

The following written evidence was received and can be viewed on the inquiry publications page of the Committee’s website.

HRR numbers are generated by the evidence processing system and so may not be complete.

1 Dr Hélène Tyrrell and Professor Alison Young (HRR0001)

2 Lord Mance (HRR0002)

3 Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow School of Law (HRR0003)


List of Reports from the Committee during the current Parliament

All publications from the Committee are available on the publications page of the Committee’s website.

Session 2021–22

Number

Title

Reference

1st

Children of mothers in prison and the right to family life: The Police, Crime, Sentencing and Courts Bill

HC 90
HL 5

2nd

Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order)

HC 331
HL 23

3rd

The Government’s Independent Review of the Human Rights Act

HC 89
HL 31

4th

Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Part 4): The criminalisation of unauthorised encampments

HC 478
HL 37

5th

Legislative Scrutiny: Elections Bill

HC 233
HL 58

6th

Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Parts 7 and 8): Sentencing and Remand of Children and Young People

HC 451
HL 73

7th

Legislative Scrutiny: Nationality and Borders Bill (Part 1) – Nationality

HC 764
HL 90

8th

Proposal for a draft Bereavement Benefits (Remedial) Order 2021: discrimination against cohabiting partners

HC 594
HL 91

9th

Legislative Scrutiny: Nationality and Borders Bill (Part 3) – Immigration offences and enforcement

HC 885
HL 112

10th

Legislative Scrutiny: Judicial Review and Courts Bill

HC 884
HL 120

11th

Legislative Scrutiny: Nationality and Borders Bill (Part 5)—Modern slavery

HC 964
HL 135

12th

Legislative Scrutiny: Nationality and Borders Bill (Parts 1, 2 and 4) – Asylum, Home Office DecisionMaking, Age Assessments, and Deprivation of Citizenship Orders

HC 1007
HL 143

1st Special Report

The Government response to covid-19: fixed penalty notices: Government Response to the Committee’s Fourteenth Report of Session 2019–21

HC 545

2nd Special Report

Care homes: Visiting restrictions during the covid-19 pandemic: Government Response to the Committee’s Fifteenth Report of Session 2019–21

HC 553

3rd Special Report

Children of mothers in prison and the right to family life: The Police, Crime, Sentencing and Courts Bill: Government Response to the Committee’s First Report

HC 585

4th Special Report

The Government response to covid-19: freedom of assembly and the right to protest: Government Response to the Committee’s Thirteenth Report of Session 2019–21

HC 586

5th Special Report

Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 3 (Public Order): Government Response to the Committee’s Second Report

HC 724

6th Special Report

Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 4 (Unauthorised Encampments): Government Response to the Committee’s Fourth Report

HC 765

7th Special Report

Legislative Scrutiny: Elections Bill: Government Response to the Committee’s Fifth Report

HC 911

8th Special Report

Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill (Parts 7 and 8): Sentencing and Remand of Children and Young People: Government Response to the Committee’s Sixth Report

HC 983

9th Special Report

Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing: Government Response to the Committee’s Third Report of Session 2019–21

HC 1198

10th Special Report

Legislative Scrutiny: Nationality and Borders Bill: Government Responses to the Committee’s Seventh, Ninth, Eleventh and Twelfth Reports

HC 1208

Session 2019–21

Number

Title

Reference

1st

Draft Jobseekers (Back to Work Schemes) Act 2013 (Remedial) Order 2019: Second Report

HC 146
HL 37

2nd

Draft Human Rights Act 1998 (Remedial) Order: Judicial Immunity: Second Report

HC 148
HL 41

3rd

Human Rights and the Government’s Response to Covid-19: Digital Contact Tracing

HC 343
HL 59

4th

Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report

HC 256
HL 62

5th

Human Rights and the Government’s response to COVID-19: the detention of young people who are autistic and/or have learning disabilities

HC 395
(CP 309)
HL 72

6th

Human Rights and the Government’s response to COVID-19: children whose mothers are in prison

HC 518
HL 90

7th

The Government’s response to COVID-19: human rights implications

HC 265
(CP 335)
HL 125

8th

Legislative Scrutiny: The United Kingdom Internal Market Bill

HC 901
HL 154

9th

Legislative Scrutiny: Overseas Operations (Service Personnel and Veterans) Bill

HC 665
(HC 1120)
HL 155

10th

Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill

HC 847
(HC 1127)
HL 164

11th

Black people, racism and human rights

HC 559
(HC 1210)
HL 165

12th

Appointment of the Chair of the Equality and Human Rights Commission

HC 1022
HL 180

13th

The Government response to covid-19: freedom of assembly and the right to protest

HC 1328
HL 252

14th

The Government response to covid-19: fixed penalty notices

HC 1364
HL 272

15th

Care homes: Visiting restrictions during the covid-19 pandemic

HC 1375
HL 278

1st Special Report

The Right to Privacy (Article 8) and the Digital Revolution: Government Response to the Committee’s Third Report of Session 2019

HC 313

2nd Special Report

Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill: Government Response to the Committee’s Tenth Report of Session 2019–21

HC 1127

3rd Special Report

Legislative Scrutiny: Overseas Operations (Service Personnel and Veterans) Bill: Government Response to the Committee’s Ninth Report of Session 2019–21

HC 1120

4th Special Report

Black people, racism and human rights: Government Response to the Committee’s Eleventh Report of Session 2019–21

HC 1210

5th Special Report

Democracy, freedom of expression and freedom of association: Threats to MPs: Government Response to the Committee’s Third Report of Session 2019

HC 1317

6th Special Report

Legislative Scrutiny: Police, Crime, Sentencing and Courts Bill, Part 4 (Unauthorised Encampments): Government Response to the Committee’s Fourth Report

HC 765

7th Special Report

Legislative Scrutiny: Elections Bill: Government Response to the Committee’s Fifth Report

HC 911


Footnotes

2 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021

3 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, page 3

4 Conservative Manifesto 2010, page 79

5 Reform of the Human Rights Act 1998, Number 9406, House of Commons Library, December 2021, p 12

6 Conservative manifesto 2015, page 58

7 Queen’s Speech 2015

8 Conservative Manifesto 2019, page 48

9 The Independent Human Rights Act Review, CP 586, December 2021, Chapter One, para 45

10 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021. The Secretary of State for Justice and Lord Chancellor, Dominic Raab MP, also confirmed this was the Government’s position when he gave evidence to us on 8 December 2021. See Q2

11 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 8

12 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, page 3

13 Reform of the Human Rights Act 1998, Number 9406, House of Commons Library, December 2021, p 6

14 Oral evidence taken before the Justice Committee on 1 February 2022, HC (2021–2022) 1087, Q11 [Sir Peter Gross]

15 See ‘What are Human Rights’, Office of the UN High Commissioner for Human Rights: “The principle of universality of human rights is the cornerstone of international human rights law. This means that we are all equally entitled to our human rights. This principle, as first emphasized in the [Universal Declaration of Human Rights], is repeated in many international human rights conventions, declarations, and resolutions.”

16 See ‘International Human Rights Law’, Office of the UN High Commissioner for Human Rights

17 See, for example, Baroness Hale, ‘Common law and Convention law: the limits to interpretation’ E.H.R.L.R. 2011, 5, 534–543.

18 Joint Committee on Human Rights, Third Report of Session 2021–2022, The Government’s Independent Review of the Human Rights Act, HC 89/HL 31, page 5

19 Home Office, Rights brought home: the Human Rights Bill, Cm 3782, October 1997, para 1.14

20 Joint Committee on Human Rights, Third Report of Session 2021–2022, The Government’s Independent Review of the Human Rights Act, HC 89/HL 31, para 14

21 Home Office, Rights brought home: the Human Rights Bill, Cm 3782, October 1997

22 Q32

23 Q5 [Lord Mance]

24 Q32 [Caoilfhionn Gallagher QC]

25 European Court of Human Rights (HRA0011) page 4

26 European Court of Human Rights (HRA0011) page 5

27 Q4 [Lord Mance]

28 The Independent Human Rights Act Review, CP 586, December 2021, Chapter Four

29 Joint Committee on Human Rights, Third Report of Session 2021–2022, The Government’s Independent Review of the Human Rights Act, HC 89/HL 31, page 262

30 Q43, Q48 [Sarah Dallal]

31 Joint Committee on Human Rights, Third Report of Session 2021–2022, The Government’s Independent Review of the Human Rights Act, HC 89/HL 31. British Institute of Human Rights (HRA0030) page 2

32 Ministry of Justice, Independent Human Rights Act Review – Call for evidence responses, accessed March 2022

33 Joint Committee on Human Rights, Tenth Report of Session 2017–19, Enforcing Human Rights, HL Paper 171 / HC 669, 19 July 2018, para 155

34 Q31

35 The Independent Human Rights Act Review, CP 586, December 2021, Chapter One, para 48

36 The Independent Human Rights Act Review, CP 586, December 2021, Chapter One, para 48

37 The Independent Human Rights Act Review, CP 586, December 2021, Chapter One, para 48

38 Q3

39 Lord Carnwath lecture on Human Rights Act reform – is it time for a new British Bill of Rights?, Constitutional Law Matters, 9 February 2022,. imilar sentiment was expressed by Caoilfhionn Gallagher Q34 “it is a very high-stakes proposal and relatively pointless”.

40 Q15 [Lord Wolfson]

41 Q32 [Schona Jolly QC]

42 Joint Committee on Human Rights, Third Report of Session 2021–2022, The Government’s Independent Review of the Human Rights Act, HC 89/HL 31, chapter 3. Ministry of Justice, The Independent Human Rights Act Review Report, 2021, chapters 2, 3 and 4

43 Q14 [Lord Wolfson]; which was disputed by evidence received from Professor Gearty Q36, supported by evidence from Dr Tyrrell, Q4

44 Q4–5 [Dr Tyrrell], Q6 [Professor Tomkins] Q35, [Professor Gearty], Q35. [Schona Jolly QC]. See also Letter from the House of Commons Justice Committee to Dominic Raab MP “Response to the Government’s consultation on Human Rights Act Reform”, dated 8 March 2022

45 Q4 [Dr Tyrrell]

46 Q6 [Professor Tomkins]

47 Q6 [Lord Mance]

48 Q7 [Professor Tomkins]

49 Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

50 Lord Mance (HRR0002). He gave Tyrer v United Kingdom (1978) (App. No. 5856/72) relating to corporal criminal punishment in the Isle of Man as an example of a case where it was legitimate for the ECtHR to have regard to changed social understanding and attitudes.

51 Edwards v AG of Canada [1930] AC 124, concerning the eligibility of women to sit in the Senate of Canada. Referenced in Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

52 Q7 [Professor Young]

53 Dudgeon v United Kingdom (1982) 4 EHRR 149

54 Tyrer v United Kingdom (1978) 2 EHRR 1 [31]

55 Such an approach is sometimes characterised as “originalist”, a phrase used to describe the approach preferred by one side in the debates over the interpretation of the US constitution in relation to abortion rights.

56 Q34 [Schona Jolly]

57 Q7 [Dr Tyrrell]

58 Q7 [Professor Young]

59 See, for example, criticisms of this mismatch Lord Carnwath lecture on Human Rights Act reform – is it time for a new British Bill of Rights?, Constitutional Law Matters, 9 February 2022

60 Lord Mance (HRR0002)

61 Q14 and Q15 [Lord Wolfson]

62 Ministry of Justice, The Independent Human Rights Act Review Report, 2021, chapter 2, paragraphs 185–200. The IHRAR Report considered, this might help with public ownership of rights. They gave the example, that the police may have been more willing to accept a duty to investigate complaints from women raped by John Worboys if that were a common law duty rather than one flowing from Convention rights and that sequencing rights consideration could assist with acceptance of rights by public authorities [paragraph 191 of Chapter 2 to that Report].

63 Option 2 of the Government’s consultation paper also seems to consider a role for common law fundamental rights in s. 2 HRA

64 Q1 [Professor Young]

65 Q5 [Lord Mance]. See also Q5 [Professor Young]

66 Q5 [Dr Tyrrell]

67 Lee v United Kingdom (Application No. 18860/19) ECHR [2021]

68 Lord Carnwath lecture on Human Rights Act reform – is it time for a new British Bill of Rights?, Constitutional Law Matters, 9 February 2022. Similar views were expressed by Caoilfhionn Gallagher, Q32, noting the proposals are likely to “cause confusion, uncertainty and more delay, so undermining the entire purposes of the Human Rights Act to bring rights home”.

69 See also the Letter from the House of Commons Justice Committee to Dominic Raab MP “Response to the Government’s consultation on Human Rights Act Reform”, dated 8 March 2022

70 Q35 [Schona Jolly], Q5 [Professor Tomkins] expressed a similar view. Although note the opinion that amendments to s 2 HRA enable the Courts to “be better able to support going beyond” the ECHR caselaw, Q6 [Dr Helene Tyrrell]

71 Q35 [Schona Jolly]

72 Q6 [Dr Tyrrell]. See also Q41 [Caoilfhionn Gallagher QC] “this wording makes it more likely that you are going to have precisely the problem that we had pre-2000, with that series of cases where you had the long road to Strasbourg, and then the UK being embarrassed on the international stage and ultimately having to take remedial action later”.

73 See the Letter from the House of Commons Justice Committee to Dominic Raab MP “Response to the Government’s consultation on Human Rights Act Reform”, dated 8 March 2022

74 Lord Mance (HRR0002), which contains many useful examples illustrating the problems of such a proposal.

75 Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

76 Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

77 See Lord Mance (HRR0002), “The present procedure appears to be a useful means of confirming that due attention has been given to the implications in the relevant context of the Convention rights as enacted domestically; and enables the Government to make clear when it intends to depart from such rights or their Strasbourg interpretation, in the very rare case that that occurs.” See also Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

78 Q28 [Lord Wolfson]

79 Q9 [Dr Tyrrell]

80 See Cabinet Office, Guide to Making Legislation, chapter 11 which recalls the commitment to provide such an assessment and sets out what is required

81 Q33–34 [Professor Gearty]

82 Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

83 See for example, letter from the Chair of the Joint Committee on Human Rights to the Leader of the House of Commons, dated 29 March 2021 and letter from the Leader of the House of Commons to the Chair of the Joint Committee on Human Rights, dated 21 April 2021

84 This was the case, for example, with the protest provisions in the Police, Crime, Sentencing and Courts Bill, and the wide-ranging amendments to remove due process protections in the Sanctions and Anti-Money Laundering Act under the Economic Crime Bill. Both of these Government amendments introduced entire Parts of a Bill at a late stage, with content that should have benefitted from heightened parliamentary scrutiny for human rights compatibility.

85 See Professor Alison Young; Dr Hélène Tyrrell (HRR0001), for ideas as to how modifications to the Standing Orders in the House of Commons might help to facilitate more debates on the content of human rights, for example by “empowering the Joint Committee on Human Rights to propose a motion in Parliament regarding legislative scrutiny of a particular Bill … where there is a wide margin of appreciation which may provide an opportunity for Parliament to discuss whether there is a desire to provide a stronger protection of a right than the minimum protection provided by the Convention”.

86 See for example, the case of R (Animal Defenders International) v Secretary of State for Culture Media and Sport [2008] UKHL 15, which shows that s. 19(1)(b) statements can be usefully used in situations of ambiguity as to compatibility, even where the Bill was ultimately found to be compatible with human rights.

87 Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

88 Q31 [Elizabeth Prochaska]

89 It could be useful for section 19(1) statements to cover compatibility with: the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights, the UN Convention Against Torture, the UN Convention on the Rights of the Child, the UN Convention on the Elimination of all Forms of Racial Discrimination, the UN Convention on the Rights of Persons with Disabilities, the UN Convention for the Elimination of all forms of Discrimination Against Women, the Refugee Convention, the UN Statelessness Conventions, and any other international Conventions that bind the UK and that are relevant to the subject matter of the Bill. The Government currently aims to provide the analysis in relation to these Conventions, but greater consistency would be an improvement.

90 Q16

91 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 239

92 Joint Committee on Human Rights, Third Report of Session 2021–2022, The Government’s Independent Review of the Human Rights Act, HC 89/HL 31, para 137

93 Concluding that “there is no substantive case that UK Courts have misused section 3 or 4, certainly once there had been an opportunity for the application of the HRA to settle down in practice. There is a telling gulf between the extent of the mischief suggested by some and the reality of the application of sections 3 and 4”, The Independent Human Rights Act Review, CP 586, December 2021, Chapter Five, para 182.

94 See, for example, the judgment of the Supreme Court in McDonald v McDonald [2017] AC 273 at para 69: “there is a difference between interpretation, which is a matter for the courts and others who have to read and give effect to legislation, and amendment, which is a matter for Parliament.”

95 Ghaidan v Godin-Mendoza [2004] 2 AC 557

96 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 117

97 [2007] EWHC 237 (Admin)

98 [2019] UKSC 44

99 [2020] NICA 36

100 See further chapter 9 below

101Lord Carnwath lecture on Human Rights Act reform – is it time for a new British Bill of Rights? “, Constitutional Law Matters, 8 February 2022

102 Ibid

103 DPP v Ziegler [2021] UKSC 23

104 Q8 [Professor Tomkins]

105 In Ziegler a District Judge decided that the partial blocking of a road by demonstrators had fallen within the ‘lawful excuse’ exception to the offence of obstructing the highway. The Supreme Court declined to overturn this decision. Reading the phrase ‘lawful excuse’ so as to cover legitimate exercises of Article 10 (free expression) and Article 11 (free association) rights, is a well-established and, to our mind, uncontroversial interpretation of obstructing the highway using section 3 HRA. As Lord Mance observed in oral evidence, when disagreeing with Professor Tomkins’ view of Ziegler, “before the Supreme Court there was no argument about the interpretive principle; it was common ground” [Q8]. Whatever one thinks of the District Judge’s view that the actions of the defendants in this case were insufficiently disruptive to fall outside the ‘lawful excuse’ exemption, that does not mean the section 3 interpretation of the offence was in any way inappropriate.

106 R v Secretary of State for the Home Department, ex p. Brind [1991] UKHL 4 (07 February 1991)

107 Known as the ‘principle of legality’, articulated by Lord Browne-Wilkinson in R. v Secretary of State for the Home Department, ex parte Pierson [1998] A.C. 539, 585–92, 603–04: “A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”

108 Q9 [Professor Tomkins]

109 The ECtHR held in 2006 that a declaration of incompatibility did not amount to a domestic “effective remedy” that needed to be exhausted before a claim could be brought to the Strasbourg Court (under Article 35(1) ECHR, an applicant may only bring a claim to the ECtHR if they have exhausted all the effective remedies that are available to them in their own country) – see Burden v UK, Application No 13378/05, Judgment, 12 December 2006. The ECtHR has not, however, found that a declaration of incompatibility violates the Article 13 ECHR obligation to provide a victim with an “effective remedy” because Article 13 does not require a contracting state to put in place measures by which individuals can challenge the validity of primary legislation (Greens and MT v United Kingdom (2011) 53 EHRR 21 at [90]-[92]).

110 Q1 [Lord Mance]

111 See The Independent Human Rights Act Review, CP 586, December 2021, Chapter 5, paras 203–205 which notes that the Irish ECHR Act 2003 allows for such ex gratia payments.

112 For example, the remedial order intended to remedy the incompatibility identified in August 2018 in respect of bereavement benefits in Siobhan McLaughlin, Re Judicial Review (Northern Ireland) Supreme Court; [2018] UKSC 48 has not yet been finalised.

113 Q8 [Dr Tyrrell]

114 See section 4(3) & (4) HRA

115 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, Question 15

116 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, Para 250

117 It is possible that it could be a way of preventing an increase in quashing orders resulting from amendments to section 3 HRA (discussed above).

118 As discussed further above in respect of proposed reform of section 3 HRA

119 Q40 [Professor Gearty] [Elizabeth Prochaska]

120 Q34 [Professor Gearty]

121 Q11 [Lord Mance]

122 Joint Committee on Human Rights, Third Report of Session 2021–2022, The Government’s Independent Review of the Human Rights Act, HC 89/HL 31, para 112

123 The Independent Human Rights Act Review, CP 586, December 2021, Chapter 7, para 55 et seq.

124 See ‘The Human Rights Act: basic principles and values’, JLGL 2001, 4(2), 41–47

125 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, Question 16

126 Joint Committee on Human Rights, Tenth Report of Session 2021–2022, Legislative Scrutiny: Judicial Review and Courts Bill, HC 884/HL 120, Chapter 2

127 We note in this regard a number of the suggestions in the evidence of Professor Alison Young and Dr Hélène Tyrrell (HRR0001)

128 Joint Committee on Human Rights, Third Report of Session 2021–22, The Government’s Independent Review of the Human Rights Act, see chapter 9, p 68–70, in particular the conclusions at paragraphs 235–236. See also, The Independent Human Rights Act Review, CP 586, December 2021, Chapter 9

129 Q9 [Professor Young]

130 See Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

131 See, for example, Q8 [Lord Mance], Q9 [Professor Tomkins], Q9 [Dr Tyrrell]

132 Constitutional document is not defined in legislation, but in caselaw has been taken to include the devolved settlements, Magna Carta, the Bill of Rights, The Acts of Union 1707, the Reform Acts, the HRA or the Equality Act.

133 For example, whilst the power is s. 10 HRA is not so restricted, the powers in the European Union (Withdrawal) Act do not allow amendment of the HRA.

134 House of Lords, Justice and Security Bill, Constitution Committee, Third Report of Session 2012–2013, HL Paper 18, para 32

135 It is appropriate to recall here that there has been one such remedial order relating to the very specific facts of the case of Hammerton v UK ECtHR [2016] (Application No 6287/10). Mr Hammerton was committed to prison for contempt of court for a longer period of time than he would otherwise have been, because the judge had not allowed him to have legal representation when considering detention (a violation of Article 6 ECHR). However, the Human Rights Act (s. 9(3)) prevented Mr Hammerton from having an effective remedy (Article 13 ECHR) for this violation of human rights, as it only permitted a remedy where the judge had been acting in bad faith, which is a very high threshold. To remedy this situation, The MoJ proposed amending this provision relating to damages by remedial order to accommodate for these very specific circumstances.

136 Of a total of 11 remedial orders made since the enactment of the HRA (7 in respect of declarations of incompatibility; 4 following ECtHR judgments), only 3 have been made under the urgent procedure – The Mental Health Act 1983 (Remedial) Order 2001/3712; The Naval Discipline Act 1957 (Remedial) Order 2004/66; and the Terrorism Act 2000 (Remedial) Order 2011/631.

137 Q18 [Lord Wolfson]

138 Professor Alison Young; Dr Hélène Tyrrell (HRR0001)

139 ‘Limited rights’ are those rights that are neither qualified nor absolute. For example, Article 5 ECHR, which protects the right to liberty, is not absolute, because it allows for people to be deprived of their liberty in certain limited circumstances, but is not treated as qualified either because interferences that fall outside those circumstances will not be justified even if considered ‘necessary in a democratic society’. Proportionality is not central to the limited rights but may be relevant in some ways, such as to the question of whether a deprivation of liberty becomes ‘arbitrary’ and thus in breach of Article 5. Positive obligations are discussed in Chapter 7.

140 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, Para 289

141 Set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation Ltd. [1948] 1 KB 223, it is unlawful for a public authority to act in such a way that is so unreasonable that no reasonable public authority would have so acted.

142 Kennedy v Charity Commission (Secretary of State for Justice intervening) [2015] AC 455, at para. 54, per Lord Mance

143 Kennedy v Charity Commission (Secretary of State for Justice intervening) [2015] AC 455, at para. 54, per Lord Mance

144 Q31 [Professor Gearty]

145 As Lord Bingham put it in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, under the proportionality test: “[t]here is no shift to a merits review, but the intensity of review is greater than was previously appropriate.”

146 Q2 [Professor Tomkins]

147 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, Question 23

148 Q10 [Lord Mance]

149 Regina (SC and others) v Secretary of State for Work and Pensions and others [2021] UKSC 2 at para 144

150 Q10 [Professor Young]

151 Q10 [Professor Tomkins]

152 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, paragraphs 266– 267

153 For example, Government Departments, Local Authorities, NHS trusts, coroners, police, prisons, Parole Board, Legal Services Commission, the General Medical Council

154 Section 6(3)(b) and (5) Human Rights Act 1998

155 Aston Cantlow PCC v Wallbank [2003] UKHL 37, [2003] 3 WLR 283

156 Lord Mance (HRR0002), page 8

157 Following YP v Birmingham City Council [2007] UKHL 27, Parliament reversed the House of Lords majority decision that a health care company contracted by the local authority was not a public authority.

158 See Ghaidan v Godin-Mendoza [2004] UKHL 30 and R (Chester) v SOS for Justice [2013] UKSC 63 for discussion of the extent of the defence.

159 Aston Cantlow PCC v Wallbank [2003] UKHL 37, [2003] 3 WLR 283, para 19

160 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, paragraphs 274

161 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, paragraphs 275

162 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, paragraphs 274

163 Lord Mance (HRR0002), page 8

164 Lord Mance (HRR0002), page 8

165 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, paragraph 9

166 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, paragraph 9

167 Osman v UK ECHR 1998

168 OOO v Commissioner of Police of the Metropolis [2011] EWHC 1246 (QB); Commissioner of Police of the Metropolis (Appellant) v DSD and another (Respondents) [2018] UKSC 11

169 CN v UK (Application no. 4239/08) ECHR 2012

170 Goodwin v UK (2002) 35 EHRR 18

171 R (Pretty) v DPP [2002] 1 AC 800

172 Clayton and Tomlinson, The Law of Human Rights, 2nd ed. , pp.364 – 9; Mosley v UK [2012] 1 FCR 99 para 109

173 Oneryildiz v Turkey ECHR 2004

174 Budayeva v Russia ECHR 2008

175 Van Colle v Chief Constable of Hertfordshire Police [2008] UKHL 50

176 Osman v UK para 116, which states: “For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.”

177 Q20 [Lord Wolfson]

178 See paragraphs 34–43 above for a wider discussion about the importance of the living instrument doctrine.

179 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 223, Questions 8 and 9

180 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 219

181 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 219, paras 129–130

182 Q19 [Request from the Chair]

183 “[A] claim for a breach under Article 8 for failure to provide personal grooming items; damages claim for interference with property under Article 1 Protocol 1 of the Convention where the Claimant was unable to recover a pair of trainers from stored property; and damages claim under Article 3 relating to the failure to change bed sheets on a weekly basis in prison despite the claimant not providing their own laundry on time.” Letter from Lord Wolfson to JCHR Chair, 28 February 2022

184 Q43 [Elizabeth Prochaska]

185 This mirrors the ‘victim test’ in Article 34 ECHR, which determines who may bring a claim under the Convention.

186 The Government’s consultation does not specify the type of proceedings to which the proposed permission stage would apply, but since there is already a permission stage for judicial review claims it seems likely that the proposal would relate only to claims for damages brought under section 7 HRA.

187 See Civil Procedure Rules Part 3.4(2).

188 Some case law suggests that human rights claim may also be struck out or rejected by the courts on the basis of the ‘de minimis’ principle – i.e. that the impact of the impugned action is so minor that it is not worth the court being involved. See Jameel v Dow Jones & Co [2005] EWCA Civ 75 and Johnson v Eastlight [2021] EWHC 3069 (QB).

189 Civil restraint orders – see Civil Procedure Rules Part 3.11 and Practice Direction 3C

190 Para 22, Schedule 1, Legal Aid, Sentencing and Punishment of Offenders Act 2012

191 Regulation 43 and Regulation 5 of the Civil Legal Aid (Merits Criteria) Regulations 2013 SI No. 104

192 Regulation 58(2) and Regulation 8 of the Civil Legal Aid (Merits Criteria) Regulations 2013 SI No. 104

193 This sub-paragraph references rules of civil procedure and legal aid rules applicable in England and Wales, but similar provisions apply in Scotland

194 For example, the recent successful claim brought in respect of the ‘Reclaim These Streets’ vigil that followed the murder of Sarah Everard (Leigh v Commissioner of Police [2022] EWHC 527 (Admin)) saw minimal damages sought and no damages being awarded, when the court found a declaration adequate to meet the ‘distress and anger’ suffered. This meritorious claim could arguably have failed to pass a ‘significant disadvantage’ threshold.

195 See Article 35(3)(b) ECHR

196 The ECtHR operates on the basis of the principle of subsidiarity – i.e. that the primary responsibility for dealing with human rights claims falls on the domestic legal system. Article 35 was amended to include the ‘significant disadvantage’ requirement as part of the reforms enacted under Protocol 14, which were designed to prevent the ECtHR being overwhelmed by its rapidly expanding caseload – see Joint Committee on Human Rights, First Report of Session 2004–2005, Protocol No.14 to the ECHR, HC 106/HL 08.

197 Q43 [Elizabeth Prochaska]

198 We note that this does not appear to be a proposal related to section 8 HRA or to remedies. Additional confusion arises from the fact that the consultation asks no question about the proposal set out in the text. Question 10 which follows it simply asks: “How else could the government best ensure that the courts can focus on genuine human rights claims?”

199 Paras 48–51

200 For example, if a person claims that they have been deprived of their liberty in breach of Article 5 and that they have been falsely imprisoned (a common law claim), the courts will not award them damages for loss of liberty under both claims. Judges are well aware that a person does not get additional damages just because they have brought the same claim under two different names i.e. ‘double recovery’.

201 For example, the courts have made clear that Article 5 (right to liberty) and the common law protection against false imprisonment do not precisely overlap. See, for example, R (Jalloh) v SSHD [2020] UKSC 4

202 As noted in para 50 above, Lord Mance commented in oral evidence on the practical problems prioritisation of non-HRA claims could cause the courts – see Q5

203 Section 8(3) HRA

204 In Alseran v MOD [2017] EWHC 3289 (QB) at paras 909–916, the High Court confirmed that “in deciding what, if any, award is necessary to afford just satisfaction, the Court does not consider only the loss or damage actually sustained by the applicant but takes into account the “overall context” in which the breach of a Convention right occurred in deciding what is just and equitable in all the circumstances of the case”

205 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 307

206 Q31

207 Q20

208 First established in Airey v Ireland (Application no. 6289/73)

209 McCann v United Kingdom (1995) 21 EHRR 97, relied upon in DSD v Metropolitan Police Commissioner [2014] EWHC 2493 (QB) and Alseran v MOD [2017] EWHC 3289 (QB)

210 No further explanation for this decision appears in the judgment

211 For example, in Demir v Turkey (2001) 33 E.H.R.R. 43 two claimants were awarded damages for a breach of Article 5(3) (the right to be brought before a court promptly after arrest) despite ultimately being found guilty of terrorist offences; in Raninen v Finland (1998) 26 E.H.R.R. 563 the claimant committed offences by refusing compulsory military service but still recovered damages for his wrongful arrest and detention under Article 5; and in Petra v Romania (2001) 33 E.H.R.R. 5 a convicted murderer whose letters from prison to his wife and to the court were routinely intercepted was given substantial damages under Article 8 (with no mention of his past conduct).

212 For example, prisoners, claims brought by whom are given as examples of the need for reform in several parts of the consultation paper, inevitably have many of their rights limited or removed as a result of their imprisonment (e.g. the right to liberty under Article 5 ECHR, the right to private and family life under Article 8 ECHR or freedom from forced labour under Article 4 ECHR). Yet they otherwise remain entitled to rely upon their human rights. The Convention does not “stop at the prison gate” – Khodorkovskiy and Lebedev v. Russia, 2013, § 836.

213 Q44 [Elizabeth Prochaska]

214 Q44 [Elizabeth Prochaska]. In respect of deportation, see further para 234 in Chapter 10 below.

215 Caoilfhionn Gallagher QC raised this point in her evidence to the Committee: “We have recent cautionary tales that show precisely why it is problematic and why you cannot have a situation where, for example, someone who may have a criminal conviction that arises from their status as a victim then has to go through a protracted, lengthy court process to prove that their conduct and that conviction or caution from many years previously should not prevent them having access to the court or a remedy.” [Q44]

216 ML v Slovakia [2021] ECHR 821

217 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 206

218 It is also worth noting that this case concerned, in part, the right of a criminal to be forgotten after a criminal conviction has been spent, in order to aid reintegration into society, and not the obligations on a search engine operator to remove links containing information about an individual “invented” by the CJEU.

219 Couderc and Hachette Filipacchi Associés v. France Application No.40454/07, ECHR, 12 June 2014, para 93; Axel Springer AG v. Germany Application No.39954/08 ECHR 7 February 2012, paras 90–95

220 Von Hannover v. Germany (no. 2) [GC] ECHR 7 February 2012, paras 104–107) and Axel Springer AG v. Germany [GC] Application No.39954/08 ECHR 7 February 2012, paras 85–88, Perinçek v. Switzerland ECHR 15 October 2015 para 198

221 Bladet Tromsø and Stensaas v. Norway [GC], ECHR 20 May 1999 paras 59 and 62; Pedersen and Baadsgaard v. Denmark [GC] ECHR 19 June 2003, para 71; Von Hannover v. Germany (no. 2) [GC] ECHR 7 February 2012, para 102

222 Axel Springer AG v. Germany Application No.39954/08 ECHR 7 February 2012para 83

223 Axel Springer AG v. Germany Application No.39954/08 ECHR 7 February 2012paras 83 – 84, and Couderc and Hachette Filipacchi Associés v. France Application No.40454/07, ECHR, 12 June 2014para 43, and Sidabras and Dziautas v Lithuania ECHR 27 July 2004, para 49.

224 This applies when a court is considering granting any relief that affects freedom of expression

225 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, paras 204–217

226 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 para 213

227 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 214

228 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 215

229 Campbell v MGN [2004] UKHL 22 para 55

230 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 para 217

231 Specific protection of sources is provided for in section 10 of the Contempt of Court Act 1981, which states that “no court shall require anyone to disclose a source of information unless necessary in the interests of justice, national security or the prevention of disorder or crime”. Further protection is provided by section 8 of the Police and Criminal Evidence Act (PACE), pursuant to which police are able to search premises where an offence has been committed and there is certain evidence on the premises to assist with the investigation. This does not apply to certain material which is legally privileged; excluded material; and special procedure material. Journalistic material falls within both excluded material (confidential journalistic material) and special procedure material (non-confidential journalistic material) and can only be seized by the police if they apply for a warrant under s 9 of the PACE.

232Chris Mullin wins Old Bailey fight to protect Birmingham pub bombings sources”, PressGazette, 22 March 2022

233 Goodwin v. the United Kingdom, ECHR 27 March 1996, para 39

234 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 203

235 Section 20 Magistrates Court Act 1980

236 Summary offences are the most minor offences – these offences will almost always be prosecuted in the Magistrates Courts and carry a maximum sentence of 6 months’ imprisonment and/or a fine of up to £5000. A defendant charged with a summary offence does not have the right to a jury trial in a Crown Court. Examples of such offences include driving offences, minor criminal damage and common assault.

237 An indictable-only offence is a serious criminal offence that is triable only on indictment (trial by jury) in the Crown Court. These are the most serious offences and can never be tried in the Magistrates Courts, e.g. murder, manslaughter, robbery and rape.

238 Either-way offences are criminal offences that can be heard in the Magistrates’ or Crown Court. If the Magistrates’ Court decides their sentencing powers are sufficient to deal with the offence, the accused may elect to have it dealt with summarily in the magistrates’ court or on indictment (trial by jury) in the Crown Court. The right to elect a jury trial is provided for in section 20 of the Magistrates’ Court Act 1980. The range of offences falling into this category is very wide, including theft, possession of drugs, assault occasioning actual bodily harm.

239 Q23 [Lord Wolfson]

240 Q23 [Lord Wolfson]

241 Taxquet v Belgium ECHR 16 November 2010; Achour v. France [GC], no. 67335/01 ECHR 10 November 2004 para 51

242 Section 3 of the Immigration Act 1971

243 Section 32(5) of the UK Borders Act 2007

244 Section 33(2)(a) UK Borders Act 2007

245 Section 117C Nationality Immigration and Asylum Act 2002

246 Section 117C(4) or 117C(5) Nationality Immigration and Asylum Act 2002

247 Section 117C(6) Nationality Immigration and Asylum Act 2002

248 SSHD v CT (Vietnam) [2016] EWCA Civ 488

249 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 page 31

250 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 p42

251 AD Turkey Appeal number: HU/01512/2019, para 31

252 AD Turkey Appeal number: HU/01512/2019, para 31 para 39–40

253 AD Turkey Appeal number: HU/01512/2019, para 31 para 45

254 OO Nigeria Appeal number: HU/16908/2018, para 14, citing FTT judgment at para 146

255 OO Nigeria Appeal number: HU/16908/2018;l., para 12

256 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 para 101

257 This test has been defined as meaning “a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein”. See Othman v UK ECHR 17 January 2012, para 259.

258 Othman v UK ECHR 17 January 2012, para 260

259 Othman v UK ECHR 17 January 2012

260 See Report to Parliament by David Anderson QC, Independent Reviewer of Terrorism Legislation (2011–2017) ‘Deportation with Assurances’ July 2017, Cm 9462

261 Section 117C Nationality Immigration and Asylum Act 2002

262 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 page 45

263 Home Office and Immigration Enforcement, Foreign National Offenders appeals on human rights grounds: 2008 to 2021, published 24 February 2022

264 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 para 294

265 Paras 195 to 197

266 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 para 295

267 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 para 296

268 Unuane v UK (Application No. 80343/17) ECHR 24 Nov 2020

269 Ndidi v UK (Application no. 41215/14) Boultif v Switzerland (2001) 33 EHRR 50, Üner v Netherlands (46410/99) [2006] 10 WLUK 496 and Maslov v Austria (1638/03) [2008] 6 WLUK 542

270 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 , Question 25

271 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021 para 10

272 Al-Skeini v UK (Application No. 55721/07) ECHR 7 July 2011

273 Article 15 ECHR allows for derogation only during times of war and national emergency. States cannot derogate from certain rights under the Convention (known as non-derogable rights) such as the right to be free from torture.

274 Al Skeini v UK (Application No. 55721/07) ECHR 7 July 2011

275 Smith (and Others) v MOD [2013] UKSC 41

276 The Belfast Agreement 1998, Rights, Safeguards and Equality of Opportunity, para 2.

277 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 37.

278 Q27.

279 The Independent Human Rights Act Review, CP 586, December 2021, Chapter Two, para 23.

280 Ministry of Justice, Independent Human Rights Act Review – Call for evidence responses

281 The Independent Human Rights Act Review, CP 586, December 2021, Chapter Five, para 143.

282 Scotland 1998, Schedule 5, para 7

283 Professor Nicole Busby Human Rights and Devolution – The Independent Review of the Human Rights Act: Implications for Scotland (January 2021)

284 Ministry of Justice, Independent Human Rights Act Review – Call for evidence responses

285 Q38 [Judith Robertson]

286 Wales Act 2017, Schedule 2

287 Wales Act 2017, Schedule 1

288 Welsh Government, Written Statement: UK Government Proposal to Reform the Human Rights Act 1998, accessed 14 March 2022

289 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 35

290 Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights, CP 588, December 2021, para 262

291 Q11

292 REFERENCE by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill REFERENCE by the Attorney General and the Advocate General for Scotland – European Charter of Local Self-Government (Incorporation) (Scotland) Bill, [2021] UKSC 42

293 Q11

294 Scottish Government, Joint Statement on Human Rights Act Reform, 2 March 2022 and Joint letter to the Lord Chancellor, dated 1 March 2022

295 Joint Committee on Human Rights, Third Report of Session 2021–2022, The Government’s Independent Review of the Human Rights Act, HC 89/HL 31, para 258

296 As reported in The Scotsman, 3 March 2022: ‘Tory reform of Human Rights Act an ‘ideologically motivated attack freedoms’ say Scottish and Welsh governments’.

297 Section 19 HRA 1998 came into force on 24 November 1998

298 The Administrative Court judgment saw the court directly consider “the Government’s statement under section 19(1)(a) of the HRA 1998 explaining why the Bill was considered to be compatible with the ECHR” and conclude that it was “unsatisfactory” (para 111 et seq)–.

Human Rights Act Reform