Human Rights Act Reform: A modern Bill of Rights
Society of Labour Lawyers has responded to the governments’ consultation proposals on updating the Human Rights Act 1998 with a modern Bill of Rights. The government’s proposals can be found here.
Our full report can be read below. In summary:
1. UK Courts are not bound by Strasbourg Court decisions. Also the Strasbourg Court extends a margin of appreciation to UK Court decisions. It is right that UK Courts should “take into account” Strasbourg decisions, no more and no less, be prepared to depart from them, and explain why they follow them, when they do. Section 2 of HRA 1998 strikes the balance appropriately. The draft amendments proposed by the Government would be retrograde.
2. It would also be retrograde to create a permission hurdle for human rights claims. This would create more problems than it would solve. A “significant disadvantage” hurdle in order to bring a claim in the UK Courts would have, and is intended to have, a chilling effect, and prevent claimants proceeding or compel them to go to Strasbourg.
3. It would be a further serious and unwelcome reduction of human rights if qualified positive obligations were to be diluted. It is very well established that they cannot apply to the extent that an impossible or disproportionate benefit would be imposed on public authorities. Again, rights that were brought home by the 1998 Act would be forced back to Strasbourg if they were to be enforced at all.
4. As with Section 2, Section 3 of HRA 1998 should be left well alone. The Government’s proposals would seriously reduce the ability of the Courts to assist those where human rights have been infringed and would weaken the enforcement in the UK of the Human Rights Convention. The proposals are an
attempt to weaken the ability of individuals to enforce their rights and to reduce the accountability of Ministers. Section 3 has been interpreted in the very way that Parliament rightly intended.
5. There is no justification for departing from the considered conclusions of the Gross Report, and the leading case of Ghaidan that the Government ignores. Not least the Government’s options would pose significant difficulties in respect of both devolution within the UK and the Northern Ireland Peace Agreement.
6. The 1998 Act struck the balance well between human rights and countervailing considerations, between the UK Courts and the Strasbourg Court, and between the legislative, executive and judicial arms of government. It has stood the test of time well. In particular, in the case of primary legislation by a sovereign Parliament the power of even the UK Courts does not go beyond making a declaration of incompatibility. To extend that limit of the Court’s powers beyond primary legislation to secondary legislation from the executive would be a constitutional outrage, reduce the accountability of Ministers, and be another misconceived departure from the well reasoned and persuasive analysis in the Gross Report.
7. HRA 1998 brought rights home. The Government’s proposals will go back to the old regime and force claimants to take their cases to Strasbourg. The European Convention, the 1998 Act, and the Strasbourg and domestic jurisprudence, constitute together an accessible and balanced modern Bill of Rights that is threatened by a Government that lacks respect for those Rights.
This consultation response, submitted by the Society of Labour Lawyers to the government, was written by members of the society’s Human Rights group.
The project was led by the group’s co-chairs Sarah Sackman and James Goudie QC, assisted by the Administration Manager Frankie Grant.
Contributors include: James Nguyen, Dil-Veer Kang, Tim Forte, David Greene, Darragh Coffey, George Peretz QC, Kamaal Bola, Joseph Kelen, Roland Scarlett, Adrian Berry, Jonathan Metzer, Liz Davies QC, Michael Raff, Stephen Hockman QC and John Wadham.