Human Rights Act Reform Consultation

Introduction

The British government, while currently appearing less authoritarian than some other Western governments due to the removal of many ‘Covid restrictions’, is seeking other ways to create a punishing authoritarian regime. Some of these I have already discussed, such as the Police Bill and the Nationality Bill, and others I have not, such as the Online Harms Bill (which seeks to ban ‘Covid misinformation’). One of the most important authoritarian moves is the reform of the Human Rights Act which has now been put out to consultation by the government. This article will look at the consultation and what is in it.

The Consultation Document

The Government has provided a document to read alongside the consultation. This document is extremely long and goes in to a lot of random detail. My guess is that the idea is to make the entire thing as intimidating as possible, so that people do not bother to respond. The questions (also listed on the page) on are also very technical and legalistic and so hard to understand. I’ve got to admit that I am not the best with legal jargon myself.

Fortunately there are already a couple of guides out there to help with filling in the consultation. It can be done via email or through an online link. The guides I have found so far for filling this in:

Here are the questions copied and pasted from the UK consultation document. You’ll see what I mean about obtuse when you have a look:

  • Question 1: We believe that the domestic courts should be able to draw on a wide range of law when reaching decisions on human rights issues. We would welcome your thoughts on the illustrative draft clauses found after paragraph 4 of Appendix 2, as a means of achieving this.
  • Question 2: The Bill of Rights will make clear that the UK Supreme Court is the ultimate judicial arbiter of our laws in the implementation of human rights. How can the Bill of Rights best achieve this with greater certainty and authority than the current position?
  • Question 3: Should the qualified right to jury trial be recognised in the Bill of Rights? Please provide reasons.
  • Question 4: How could the current position under section 12 of the Human Rights Act be amended to limit interference with the press and other publishers through injunctions or other relief?
  • Question 5: The government is considering how it might confine the scope for interference with Article 10 to limited and exceptional circumstances, taking into account the considerations above. To this end, how could clearer guidance be given to the courts about the utmost importance attached to Article 10? What guidance could we derive from other international models for protecting freedom of speech?
  • Question 6: What further steps could be taken in the Bill of Rights to provide stronger protection for journalists’ sources?
  • Question 7: Are there any other steps that the Bill of Rights could take to strengthen the protection for freedom of expression?
  • Question 8: Do you consider that a condition that individuals must have suffered a ‘significant disadvantage’ to bring a claim under the Bill of Rights, as part of a permission stage for such claims, would be an effective way of making sure that courts focus on genuine human rights matters? Please provide reasons.
  • Question 9: Should the permission stage include an ‘overriding public importance’ second limb for exceptional cases that fail to meet the ‘significant disadvantage’ threshold, but where there is a highly compelling reason for the case to be heard nonetheless? Please provide reasons.
  • Question 10: How else could the government best ensure that the courts can focus on genuine human rights abuses?
  • Question 11: How can the Bill of Rights address the imposition and expansion of positive obligations to prevent public service priorities from being impacted by costly human rights litigation? Please provide reasons.
  • Question 12: We would welcome your views on the options for section 3: Option 1: Repeal section 3 and do not replace it; Option 2: Repeal section 3 and replace it with a provision that where there is ambiguity, legislation should be construed compatibly with the rights in the Bill of Rights, but only where such interpretation can be done in a manner that is consistent with the wording and overriding purpose of the legislation. We would welcome comments on the above options, and the illustrative clauses in Appendix 2.
  • Question 13: How could Parliament’s role in engaging with, and scrutinising, section 3 judgments be enhanced?
  • Question 14: Should a new database be created to record all judgments that rely on section 3 in interpreting legislation?
  • Question 15: Should the courts be able to make a declaration of incompatibility for all secondary legislation, as they can currently do for Acts of Parliament?
  • Question 16: Should the proposals for suspended and prospective quashing orders put forward in the Judicial Review and Courts Bill be extended to all proceedings under the Bill of Rights where secondary legislation is found to be incompatible with the Convention rights? Please provide reasons.
  • Question 17: Should the Bill of Rights contain a remedial order power? In particular, should it be: a. similar to that contained in section 10 of the Human Rights Act; b. similar to that in the Human Rights Act, but not able to be used to amend the Bill of Rights itself; c. limited only to remedial orders made under the ‘urgent’ procedure; or d. abolished altogether? Please provide reasons.
  • Question 18: We would welcome your views on how you consider section 19 is operating in practice, and whether there is a case for change.
  • Question 19: How can the Bill of Rights best reflect the different interests, histories and legal traditions of all parts of the UK, while retaining the key principles that underlie a Bill of Rights for the whole UK?
  • Question 20: Should the existing definition of public authorities be maintained, or can more certainty be provided as to which bodies or functions are covered? Please provide reasons.
  • Question 21: The government would like to give public authorities greater confidence to perform their functions within the bounds of human rights law. Which of the following replacement options for section 6(2) would you prefer? Please explain your reasons. Option 1: Provide that wherever public authorities are clearly giving effect to primary legislation, then they are not acting unlawfully; or Option 2: Retain the current exception, but in a way which mirrors the changes to how legislation can be interpreted discussed above for section 3.
  • Question 22: Given the above, we would welcome your views on the most appropriate approach for addressing the issue of extraterritorial jurisdiction, including the tension between the law of armed conflict and the Convention in relation to extraterritorial armed conflict.
  • Question 23: To what extent has the application of the principle of ‘proportionality’ given rise to problems, in practice, under the Human Rights Act? We wish to provide more guidance to the courts on how to balance qualified and limited rights. Which of the below options do you believe is the best way to achieve this? Please provide reasons. Option 1: Clarify that when the courts are deciding whether an interference with a qualified right is ‘necessary’ in a ‘democratic society’, legislation enacted by Parliament should be given great weight, in determining what is deemed to be ‘necessary’. Option 2: Require the courts to give great weight to the expressed view of Parliament, when assessing the public interest, for the purposes of determining the compatibility of legislation, or actions by public authorities in discharging their statutory or other duties, with any right. We would welcome your views on the above options, and the draft clauses after paragraph 10 of Appendix 2.
  • Question 24: How can we make sure deportations that are in the public interest are not frustrated by human rights claims? Which of the options, below, do you believe would be the best way to achieve this objective? Please provide reasons. Option 1: Provide that certain rights in the Bill of Rights cannot prevent the deportation of a certain category of individual, for example, based on a certain threshold such as length of imprisonment; Option 2: 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; and/or Option 3: 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.
  • Question 25: While respecting our international obligations, 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?
  • Question 26: We think the Bill of Rights could set out a number of factors in considering when damages are awarded and how much. These include: a. the impact on the provision of public services; b. the extent to which the statutory obligation had been discharged; c. the extent of the breach; and d. where the public authority was trying to give effect to the express provisions, or clear purpose, of legislation. Which of the above considerations do you think should be included? Please provide reasons.
  • Question 27: We believe that the Bill of Rights should include some mention of responsibilities and/or the conduct of claimants, and that the remedies system could be used in this respect. Which of the following options could best achieve this? Please provide reasons. Option 1: Provide that damages may be reduced or removed on account of the applicant’s conduct specifically confined to the circumstances of the claim; or Option 2: Provide that damages may be reduced in part or in full on account of the applicant’s wider conduct, and whether there should be any limits, temporal or otherwise, as to the conduct to be considered.
  • Question 28: We would welcome comments on the options, above, for responding to adverse Strasbourg judgments, in light of the illustrative draft clause at paragraph 11 of Appendix 2.
  • Question 29: We would like your views and any evidence or data you might hold on any potential impacts that could arise as a result of the proposed Bill of Rights. In particular: a. What do you consider to be the likely costs and benefits of the proposed Bill of Rights? Please give reasons and supply evidence as appropriate. b. What do you consider to be the equalities impacts on individuals with particular protected characteristics of each of the proposed options for reform? Please give reasons and supply evidence as appropriate. c. How might any negative impacts be mitigated? Please give reasons and supply evidence as appropriate.

The consultation allows you to only answer some of these questions and ignore others. To he honest I am going to ignore most of them and only focus on a few. I used the email method because I didn’t want to make arguments on the uber technical questions.

Questions 4/5/6/7: Free Expression

I looked at two bits that they mentioned in their consultation:

The government is committed to ensuring that the biggest social media companies protect users from abuse and harm, and in doing so ensuring that everyone can enjoy their right to freedom of expression free from the fear of abuse.

The government wishes to explore ways of strengthening the protection for freedom of expression in the Human Rights Act, mindful as always of the government’s primary duty to protect national security and keep its citizens safe.

Basically, ‘harm’ and ‘abuse’ can mean anything and ‘national security’ can also mean anything.

Question 8/9: Preliminary stages

  • These will be abused by the government to prevent cases they don’t like coming to court.
  • The examples that they gave on the consultation are very small uses of public money
  • Problematic to introduce this over a few frivolous cases, even if those cases lead to slight waste of public funds.

Question 22: Extraterritoriality

  • Concerns that they government will try to change this to prevent their soldiers being prosecuted for war crimes

Questions 26/27: Compensation

  • Deflects attention from the abuse and towards the individual making the claim
  • Divides the population into ‘good’ citizens worthy of rights and ‘bad’ citizens who are unworthy
  • Behaviour could mean anything such as attending a protest the government doesn’t like
  • May be used to discriminate against certain races, religions, etc. or against people who don’t agree with a state narrative e.g. the unvaxxed

General comments on the concept of a ‘rights culture’ and the public interest

See Naked Emperor’s post above on this one. Basically they are trying to put more emphasis on obligations to society. In other words another possible means to attempt forced injections in the ‘public interest’.