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In the 2019 general election manifesto, the government promised a programme of constitutional reform rebalancing the relationship between the judiciary, government and Parliament (p.48). It then established the Independent Human Rights Act Review (IHRAR) to assess the need to reform the Human Rights Act (HRA). This is an Act of Parliament which allows British judges to domestically enforce certain rights in the European Convention on Human Rights (ECHR). Put simply, British residents do not need to pursue cases in the European Court of Human Rights in Strasbourg to vindicate ECHR rights. Instead, cases can be heard and rights protected by British judges.

Led by a former Court of Appeal judge, IHRAR recommended modest reforms and concluded that the HRA was broadly working to “bring rights home”. After receiving these recommendations, the government consulted on much more significant reforms, and the briefing notes to the recent Queen’s Speech suggest that many of these will be adopted when the proposed new Bill of Rights is published soon.

The HRA has been instrumental in defending human rights as diverse as property rights, physical liberty, freedom of religion, freedom of expression and the presumption of innocence. It remains a key, and sometimes the only, reason for success in important cases where human rights have been subject to arbitrary and disproportionate state action. Equally, on matters such as assisted dying, foreign relations, public health, welfare benefits, and immigration, judges have been careful to respect the will of Parliament and the expertise of ministers.

In contrast to IHRAR, the evidence base for reform in the government’s consultation was not extensive. In general, the consultation relied on past trends in case law which have since been modified by the judges themselves; identifies problems that Parliament itself has already substantially resolved; and at times offers no empirical basis beyond one or two unrepresentative cases. 

In this context, it is worth highlighting some of the specific proposals and explaining why we should be cautious. Reform of the HRA should not be done casually or lightly. 

First is the introduction of a human rights permission stage, requiring claimants to prove that they have suffered “significant disadvantage” through the interference with their rights before pursuing a court case. This could lead to individuals being unable to pursue claims domestically which they could win at Strasbourg. 

Strasbourg also has a “significant disadvantage” threshold but with an exception where “respect for human rights…requires an examination of the application”. 

This contrasts with the government’s more stringent exception of “highly compelling reasons”, “exceptional circumstances” or “overriding public importance”. With this disparity, it is possible that cases will fall at the domestic level but go onto succeed at Strasbourg – that is, if the claimant even has the resources and energy to pursue their case that far. Prior to the HRA, on average a claimant waited five years and spent £30,000 before even getting to Strasbourg and, once there, with the current backlog, it can often take a year before the court begins work. We need to be alive to the risk of this dire situation returning, even for a small number of claimants.

This proposal could also reduce the influence that the British judiciary have over the eventual outcome of a case because they would have been required not to hear it and so would not be able to offer reasons which could then be considered by Strasbourg. Indeed, in important cases, British judges, especially in the UK Supreme Court, have been decisive in causing Strasbourg to change course following potentially problematic rulings.

A second proposal suggests abolishing the judicial power to invalidate (‘quash’) statutory instruments which violate human rights. Statutory instruments are a type of secondary legislation produced by ministers, normally not authorised in advance by Parliament. During the Covid lockdown periods, for instance, we were primarily governed via statutory instruments. 

An example of how this quashing power was used is a case in 2020 brought by the British Medical Association. The Health Secretary had produced a statutory instrument giving him the right to revoke an NHS pension where an NHS employee was charged with a criminal offence. There was no right of appeal and no automatic right to have the pension restored, even after acquittal. 

The Administrative Court declared this scheme to be a violation of the right to property, the right to a fair trial and the principle of non-discrimination. The judge quashed the statutory instrument so that this unilateral ministerial power was invalid and could not be used. If the government’s proposal is pursued, the BMA could not have received the powerful remedy that it did.  

In any event, this power to quash is used only very rarely. PLP research has demonstrated that of the 14 successful challenges to statutory instruments under the HRA between 2014 and 2021, the court quashed the instrument in just 4 cases.

A third proposal relates to section 3 of the HRA, which requires courts to interpret legislation “so far as it is possible to do so” to be compatible with human rights. This provision means that, for example, where a statute criminalises “grossly offensive” language, judges are able to give effect to that statute in a way that still respects freedom of expression.

By contrast, the government proposes to prevent courts using section 3 to make interpretations which are contrary to the ordinary meaning of a statute. Section 3 can be used to interpret legislation in a way that is contrary the ordinary meaning of words but, ordinarily, as research by JUSTICE indicates, courts take a cautious approach to the use of this power. In any event, Parliament remains sovereign and, if it believes that a court has gone wrong via a section 3 interpretation, it can reverse the case.

We need to proceed with caution. Reform in this important area should make use of the best available evidence, go no further than necessary to resolve problems, and be done in full awareness that disproportionate attempts to stop “bad cases” risk also stopping the good.

Lee is currently Research Fellow in Constitutional Reform at the Public Law Project. Views expressed in this article are those of the author, not necessarily those of Bright Blue. [Image:]