The Independent Review into Human Rights Act panel recommendations and Proposal for new Bill of Rights

It is clear from the Report that a commitment to the UK remaining a party to the Convention was not under review, and served as a "fixed premise" on which to base the Report.  Similarly, the Government had assured the panel that an examination of the substantive Convention rights, enshrined in the HRA, fell outside the scope of its review. 

Amendments to the right to freedom of expression and the right by trial by jury are not considered in the Report. Accordingly, Joshua Rozenberg has commented that the Government appears to be "casting around for ideas" in the Consultation on how best to achieve reform. 

The Report notes that one of its guiding considerations was that each convention state is the primary forum for rights protection, "with the Convention and the ECtHR serving as a longstop." As such, the Report recommends "amending Section 2 HRA to clarify the priority of rights protection by making UK legislation, common law and other case law the first port of call before, if then proceeding to interpret a Convention right, ECtHR case law is taken into account." It notes that the effect of this would be to put UK case law "centre stage".   

The Consultation proposes two alternative amendments to Section 2 of the HRA both of which seek to give primacy to UK statute and case law. It is not immediately clear how either proposal would materially change the current approach as both allow Strasbourg decisions to be taken into account. We note, however, that the second proposal grants the UK Supreme Court "ultimate responsibility for interpreting the rights under the Bill of Rights": an impossibility given the UK's alleged commitment to remaining a signatory to the Convention (and therefore the supremacy of the Strasbourg court). 

Such as the right to respect for private and family life, by guiding the UK courts in interpreting the rights and balancing them with the interests of our society as a whole.

These are not recommendations included in the Report. Indeed, the Report noted that, in general, the courts are guided by "judicial restraint and institutional respect" when reaching their decisions.

The HRA has long-been used as a vehicle for the media and Government to criticise an allegedly "liberal elite" of judges whose decisions are out of touch with society. This proposal appears to seek to address this wrong. The Report is clear that the Government must urgently address public misconceptions surrounding the operation of the HRA. This Firm agrees with the Report's 'strong recommendation' that the Government focus on civic, constitutional education; including on the difficult balances human rights questions often require.     

and strengthen the courts' discretion when granting remedies for human rights breaches.

These are not recommendations included in the Report.  Indeed, their inclusion in the Consultation is of concern as it implies that unmeritorious cases (an easy example to imagine the Government using is that of prisoner's voting rights, as referenced in the Consultation) might be refused permission. 

This risks leaving the most vulnerable in our society without recourse to remedies or justice. 

Pursuant to this objective, the Consultation makes numerous proposals, four of which relate to sections 3 and 4 of the HRA. These sections provide the Court with power to interpret legislation in a way that is compatible with Convention rights "so far as possible"¹ and to issue declarations of incompatibility where legislation cannot be interpreted compatibly². 

In short, the Report recommends:

• Amending section 3 to clarify the order of priority of interpretation, i.e., by looking first to domestic statute and the common law before turning to Convention rights. No other changes to sections 3 or 4 are recommended;
• Increased transparency in the use of Section 3 by the creation of a judgments database;
• An enhanced role for Parliament in particular through the Joint Committee on Human Rights (the JCHR);
• The introduction of a discretion to make ex gratia payments where a declaration of incompatibility is made.

Despite the limited nature of these reforms, it is notable that the Consultation requests responses on options including the complete repeal of section 3. This is despite acknowledging "that the IHRAR Panel did not support repeal of section 3" and even confirming that "[t]he government is minded to agree". In fact, the Report's Executive Summary clearly stated that "[t]he reality is that the high-water mark of alarm as to the use of Section 3 hinges on a case now 20 years old.That does not suggest a pattern, still less an enduring pattern, of misuse of the section. Further, relatively settled, restraining, guidance as to the use of Section 3 has stood for at least a decade, so that statutory amendment to narrow the section itself risks uncertainty".

¹Section 3 HRA

²Section 4 HRA

without the fear that this will expose them to costly human rights litigation.

Specifically, the Consultation explores:

• Whether alternative drafting could create a clearer definition of whether a body is public or a function of public nature for "clarity and certainty". The Report makes no such recommendation.
• Whether the current wording of the HRA, specifically Section 6(2)(b), means that the Courts "could still compel the public authority to act in a way that is contrary to the clear will of Parliament" because it only applies where primary legislation cannot be read compatibly and reading legislation compatibly "has caused controversy". To combat this, the Government proposes two options for reform, both of which would essentially mean that a public authority giving effect to clear parliamentary intentions or "the will of Parliament" would serve as a defence for its actions. The Report makes no such recommendation and, although authorities would have to otherwise be acting lawfully and in accordance with public law principles, it seems that this proposal runs the risk of public authorities not being seen to be acting unlawfully even if they violate human rights.

The consultation proposes "a formal way for Parliament to play a stronger role in responding to Strasbourg when the Court makes a final adverse ruling against the UK", including:

• A formal requirement for the Government to lay notice of such judgments before Parliament, for the purposes of enabling general Parliamentary consideration.
• The use of ministerial powers to table a motion allowing for a specific debate, which may culminate in a vote where appropriate.
• A legislative provision affirming Parliamentary sovereignty in the exercise of the legislative function, in the context of adverse Strasbourg rulings.