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Chapter 4
4.12 The future: proposals
This continues the update of October 2021.
Chapter 4, section 4.12 (5th edition) charts a degree of popular and ministerial dissatisfaction with the HRA which was taken up, particularly by the Conservative Party, after coming to government in 2010. The 2015 Conservative Manifesto referred to taking steps to ‘scrap’ the HRA, even break the link with Strasbourg.
BREXIT
Despite their election victory in 2015, the matter was postponed because of Brexit. Changes to human rights law were to await the Brexit settlement. This settlement is based upon the continuation in the UK of the legal enforcement of human rights.
The ‘political declaration’. The ‘political declaration’ between the EU and the UK, of October 2019, made it clear that some form of commitment to internationally recognised human rights law was a condition for trade and other agreements with the EU.
The Trade and Cooperation Agreement. The resulting ‘Trade and Cooperation Agreement’ (agree on Christmas Eve 2020 and brought into effect early 2021), which has the force of international law, reaffirms the general commitment to human rights in the Preamble and recognises human rights in a number of other places. In particular, the ‘basis of cooperation’ between the EU and UK under the agreement includes respect for human rights and the ‘affirmation’ of the international human rights treaties to which they are parties (Article 763, in Part II on Dispute Settlement). This does mention the ECHR specifically, and for the UK to leave the Convention system would not necessarily be a direct violation. The ECHR is, however, specifically mentioned in the context of ‘Law Enforcement and Cooperation in Criminal Matters’ (Part III) and denunciation of the Convention by UK would be a ground for terminating this part of the Agreement (Article 692).
The Brexit agreement, therefore, clearly requires the UK to adhere generally to international human rights standards and, in the case of cooperation in criminal matters, to the ECHR specially. Brexit, therefore, provides strong reasons making it likely that the UK will stay within the European Convention system – and, as we shall see below, this is now assumed in the government’s proposals.
THE GROSS REVIEW
Despite these Brexit requirements, the Johnson government committed itself to some degree of change in the nature of legal human rights protection in the UK. As noted in Chapter 4.12, the Conservative Manifesto of 2019 promised to ‘update’ the HRA on the basis of a constitutional commission.
As noted in Chapter 4, 4.12, an Independent Human Rights Act Review, under the chairmanship of Lord Gross, was appointed. Its report was delivered in October 2022 (the Review). It consists of an extensive review of the workings of the Act which focuses, in particular, on the relationship and influence of the Strasbourg court on the human rights law espoused by the UK courts, and on the influence of that human rights law on the freedom that Parliament and the government have to perform their constitutional function of legislation. In doing this, it gives a broadly positive view of the workings of the Act. It is a superb resource for any students exploring the actual workings of the Human Rights Act.
THE GOVERNMENT’S CONSULTATION
The government’s response to the Review, Human Rights Act Reform: A Modern Bill Of Rights, (the Consultation) builds on the Review’s findings on how the Act is working with what seems to be a stronger intention to change (the Review made few major recommendations for change). This reflects, as the earlier update suggests, the agenda of the Secretary of State, shown in his book Assault on Liberty.
The Consultation consists of a critical commentary on human rights law in the UK under the HRA (though it accepts the account of the working of the Act made by the Review). It identifies a range of problems, as the government sees it, a set of proposals concerning amendments to the Act, and a set of questions to be answered by those responding to the consultation invitation.
At the heart of the changes, it seems, is a desire to pursue ways of a smoother integration of human rights law with the constitution of the United Kingdom. This is to surmount the problem, as the Conservative critics see it, that the attachment of human rights law to the European Convention and, thereby, to the expansion of human rights through the ‘living instrument’ doctrine (see Chapter 6, 6.1.6), creates a situation in which new laws, and obligations on government, are being enforced by the actions of the judiciary and the normal Parliamentary oversight of law and government action is being undermined (e.g. Consultation, Chapter 3). The danger is that human rights can be thought, by many, to be external impositions rather than embodiments and strengthenings of liberties deeply entrenched in the history and traditions of the United Kingdom (this point was also recognised by the Review – showing, in Chapter 2, concern for the lack of ‘public ownership’ of the Act). The government’s Consultation wishes to explore ways to defend the idea that liberty and rights should be more strongly interwoven with the fabric and institutions of a representative democracy and integrated with Parliamentary sovereignty and the common law. In that way, through the means of what is called a British Bill of Rights, it is hoped that human rights will gain legitimacy and acceptance which, it is asserted, does not currently exist for many.
As indicated by the comments on Brexit, the government is committed to the UK remaining in the Convention system and bound by any adverse finding of the ECtHR. The text of the rights in the Bill of Rights remains that of the ECHR. Nothing in the suggested reforms will prevent a person aggrieved by a decision of the Supreme Court, from taking their case to Strasbourg.
The government has identified the following as general issues to be dealt with by reform:
(a) Strengthening our common law traditions and enhancing the role of the UKSC. The aim is that the Bill of Rights, or reform of the HRA, will create a different relationship with international human rights law than under the ‘mirror principle’ of section 2 HRA (see 5th edition, Chapter 4, 4.3.2, page 71). Courts will pay greater attention to developing an effective human rights law based on, in particular, the common law, British, traditions and also a wider exploration international human rights principles rather than just European.
The Gross Review noted that, increasingly, the UK courts are departing from simply ‘mirroring’ Strasbourg interpretations of Convention rights and, thereby, are developing a more distinctive British approach (see 5th edition, 4.3.3-4.3.6, page 71); and Chapter 2 of the Review and the Executive Summary). In particular, the Consultation endorses the point, made in the Review, that section 2 and section 3 of the HRA might be amended in order to confirm the primacy (in the sense of being the starting point) of UK law in human rights analysis. In other words, a UK court, interpreting statutes or considering the actions of public authorities for compliance with Convention rights, should start by analysis of common law principles as they have developed over the last few decades. For example, the principle that Parliament is presumed to legislate compatibly with the UK’s international obligations (such as the ECHR) or that Parliament cannot override fundamental rights without expressing that intention clearly and unambiguously (see 5th edition, Chapter 3, 3.5.2, p.62). It is only if those considerations do not give rise to Convention compatibility that the question posed by section 3 HRA, whether it is ‘possible’ to give a Convention compliant reading, arises. This, of course, is already the approach of the UK courts (see Godin v Ghaidan-Mendoza and other cases - 5th edition, Chapter 4, 4.4.5, page 81; the Report, Chapter 5, part 8) – the suggestion is that it be given statutory effect.
This approach would give greater authority to the UK Supreme Court as the final arbiter of the common law. The assumption is that there will, thereby, be a degree of uncoupling from Strasbourg, because the Supreme Court will be able to protect human rights differently from Strasbourg, based on different principles, but equally effective. On issues such as the right to jury trial or the balance between freedom of speech and privacy, UK law might develop somewhat differently.
As said above, the UK will remain in the Council of Europe and bound by the Convention. The hope is that by increasing the power of the Supreme Court to develop an effective UK-derived account of human rights, dialogue between the UK and Strasbourg, already effective, according to the Review (see Review Chapter 4), will be enhanced.
(b) Restoring a sharper focus on protecting fundamental rights. In many ways this is at the heart of the government’s concerns. To put it over-simply, the argument is that human rights have too much become the language and form in which non-fundamental claims for liberties and resources are expressed even in a reasonably well-functioning democracy. The balance between issues which should be argued out and decided in the elected assembly and given effect by ministers accountable to that assembly, and those matters which are properly removed from majoritarian, democratic control, and given to the courts to develop and protect, is, according to this view, too heavily weighted in favour of the latter. It is a familiar argument: that the Convention has been developed way beyond the core, negative, rights needed to protect European societies from a revival of totalitarianism. Through the ‘living instrument’ doctrine (see 5th edition, Chapter 6, 6.1.6, page 132) and the development of ‘positive obligations’ (see 5th edition, Chapter 6, 6.6, page 144) in, for example, areas of welfare with significant budgetary implications, Parliament has been relatively side-lined even on matters of policy and budget, as political judgements are overreached by legal obligations.
Suggestions for reform in this area involve ideas such as enacting a statutory steer on how courts are to balance interests. A great deal of human rights adjudication, especially on qualified rights, involves seeking a fair balance between the individual interests of the claimant and the rights and freedoms of others and with the government’s view of the public good. A suggestion is that statute should, for example, indicate matters which are to be given considerable weight in any human rights analysis and, perhaps, some statutory indications of when the courts should ‘defer’ to the assessment of government and Parliament of the necessity for an interference with rights. Other suggestions are the introduction of a seriousness test which any human rights claimant must pass, or amending section 8 of the HRA, so that the remedies are less advantageous (Consultation, Chapter 2, Part II).
Some of this discussion relates to the specific issue of deportation of ‘foreign national offenders’. Perhaps the greatest, particular, spur to Human Rights Act reform has been the ability of such offenders to resist deportation on Article 8 grounds. Suggestions for change include the statutory identification of some rights as being not able to prevent deportation or removal; or, more likely, is to raise the threshold for Article 8 review so that a minister’s decision to deport must stand unless it is ‘obviously flawed’.
(c) Preventing the incremental expansion of rights but without proper democratic oversight.
The arguments about the proper balance between matters for law and matters for the political processes, mentioned above, focuses attention on sections 3 and 4 of the HRA. At the moment, as we know, section 3 gives Parliamentary authority to the judges to only interpret and apply a statute in ways that ensure that it can only authorise actions that are compatible with Convention Rights, unless this is impossible to do. As recently confirmed in A.G’s Reference…[2021] UKSC 42 (discussed in a previous update) this enables courts to go way beyond the normal canons of interpretation and to depart from what would otherwise have been the intention of Parliament. The courts may ‘strain’ the clear words of a statute in order to ensure it is Convention-compliant and thereby establish what is in effect a prospective rule of law which is different from the rule that Parliament intended (as that would have been identified by normal rules of interpretation) (see 5th edition, Chapter 4, 4.4.5-4.4.7, page 81) . There is no intention to repeal this, the government intends to keep a distinct interpretative regime for dealing with conformity of legislation with Convention rights (i.e. there is no intention simply to repeal section 3).
Nevertheless, there is an intention to seek ways of restricting the circumstances in which there can be departure from normal, established, cannons of statutory interpretation. A suggestion is that this distinct interpretative regime under section 3 will only apply if the statute is ambiguous; or a statutory requirement that the outcome of human rights analysis must be consistent with the general purpose of the constructed Parliamentary intention.
The ‘declaration of incompatibility’ (section 4) will be retained (see 5th edition, Chapter 4, 4.4.3, page 78). Section 4 allows government, through Parliament, to make appropriate changes to incompatible legislation if it so wishes, or to do nothing. Thereby it allows ‘democratic over-sight’ to the process of complying with Convention rights, and so fits in with the general thrust of the Consultation paper.
The position of ‘public authorities’, under section 6 of the HRA (see 5th edition, Chapter 4, 4.5, page 89) is also discussed. Here, again, major change is not recommended (though there is discussion of the ‘public functions’ test for identifying public authorities – see 5th edition, Chapter 4, 4.5.5 & 4.5.6, page 91) but the main focus is on clarifying (perhaps strengthening) the public authorities’ defence under section 6(2) HRA (see 5th edition, Chapter 4, 4.5.8, page 97).
(d) Emphasising the role of responsibilities within the human rights framework
The criticism here is of an over-developed rights culture which underplays individual responsibilities. It refers to the sense, raised above, that, to a degree that is too extensive, the scope of political judgments, judgments about the common good, is being narrowed by a discourse focusing on the claims of individuals to have rights. The proposed Bill of Rights should have some notion of responsibilities to others and to society written into it. Again, it is difficult to know how this is to be done but might be reflected in the availability of remedies (see 5th edition, Chapter 5, 5.4, page 120). Judges may be required by statute to take into account the applicant’s behaviour.
(e) Facilitating consideration of and dialogue with Strasbourg while guaranteeing Parliament its proper role.
As has been said, the final resort of human rights protection in the UK remains the United Kingdom’s membership of the Council of Europe and adherence to the Convention. The Consultation seeks ways to formalise the ‘dialogue’ which already exists between the UK Supreme Court and the Court of Human Rights (see 5th edition, Chapter 4, 4.3.6, page 73). This is the mutually productive engagement between the UK Supreme Court and the Strasbourg Court over the nature and scope of Convention rights. The UK courts, particularly the Supreme Court, engage in carefully reasoned analysis of Convention jurisprudence. The result may be greater clarity and understanding of the precise reach and meaning of a Convention right – which benefits the understanding of human rights protection in both the UK and in Europe generally. In the opinion of the Review, this ‘dialogue’ is working well and is recognised by both parties as being for their mutual benefit (Review, Chapter 4). The government’s Consultation seeks partly to formalise this dialogue (unlike the Review which endorses ‘organic development) and, in particular, give the UK Parliament its own place in the process, such as by placing a statutory obligation on a minister to table a debate where there is divergence between the Supreme Court and the Court of Human Rights (Consultation, Chapter 4, Part V).
The broad aim of these proposals, therefore, is to explore ways of sourcing human rights law in UK constitutional traditions and in doing so uphold the sovereignty of Parliament and put limits on the expansion of human rights through Strasbourg and the ‘living instrument’ doctrine. It is based on a view that the HRA is unpopular or at least has not enjoyed a sense of ‘ownership. Whether this is true is unclear – surveys have always suggested that support for the Act can also be found. There is an element of political choice behind the drive for reform (though, as said above, the Review, independent of government, does accept that there is, generally, a lack of ‘ownership).
Critics may argue that integrating human rights with the UK constitution raises the risk of executive dominance and the diminishing of government accountability. This is because under the UK system the government has, of course, an inbuilt majority in Parliament which it can usually rely on (and thus escape scrutiny) but which can, on occasion, push it in populist directions (and thus persuade it to introduce legislation that violates human rights).
Likewise, critics may point out that the reliance of the Consultation on the common law also has its limits since the common law must always give way to the expressed, clear and unambiguous intention of Parliament.
Furthermore, it can be noted, even by those who agree with the idea of reform, that many of the suggestions do little more than give statutory effect to what is already happening. Thus, it is already the case that UK judges, interpreting legislation under section 3 or assessing the lawfulness of the actions of public authorities under section 6, accept that an analysis based on the common law’s developed, rights-aware, principles of statutory interpretation is the proper starting point, do not slavishly follow Strasbourg principles and are developing a complex and democratically sensitive sense of the separation of powers on questions such as whether interferences of rights are ‘necessary in a democratic society’.
Conversely, and importantly, the European Court of Human Rights, particularly under the presidency of Judge Robert Spano, is reigning in the ‘living instrument doctrine’ by requiring any expansion of rights to have firm foundations in something like legal consensus in Europe or internationally, the Court, it seems, no longer sees itself, if it ever did, as leading force for promoting progressive values in Europe. Furthermore, when Protocol 15 is brought into effect, it will introduce ‘subsidiarity’ into the text of the Preamble and recognise the primary role of the nation state in protecting human rights.
The government is seeking to consult on these proposals. In the end little may come of them, and, in any case, they emphatically do not represent any major dismantling of the protection of human rights law in the UK. On the basis of the Consultation:
- Any British Bill of Rights (or amendments to the HRA) will continue to have the Convention as the abstract text of rights to be given effect in the UK (though there might be additions).
- The UK will remain a member of the Council of Europe, bound by the Convention and with an obligation to give effect to adverse decisions by the Court of Human Rights. The European Court, therefore, remains as an external, international, supervisor of the effectiveness of the guarantees of human rights in the UK.
- UK common law, no doubt influenced by the Convention both before and after the enactment of the HRA, already gives a strong basis for the guarantee of human rights norms in the UK.
Responses to the Consultation are to be received by early March 2022. The next stage, presumably, will be some form of ‘white paper’ containing specific proposals for legislation.
Howard Davis
March 2022