Proposals for Reform of the Human Rights Act

Updated: Mar 4

By Tan Wei Heng


https://www.lchr.org.uk/humanrightsact_background


Introduction


The reform of the Human Rights Act (HRA) has been admonished by many as a step towards the concentration of power in the executive and would undermine fundamental human rights.


Proposed Reforms


On the one hand, Britain would remain a party to the European Convention on Human Rights (ECHR). [1] However, the various revisions would only undermine years of progress in human rights development:

  1. The government believes a “misplaced” attempt to ensure Strasbourg case law was enshrined in UK judgment. [2] As such, the government is considering amending s.2 to declare the courts are no longer bound by Strasbourg decisions and to draw on a wider jurisdiction of case law. [3]

  2. The government hopes to “prevent incremental expansion of rights without proper democratic oversight” [4] through reform to s.3 to curtail the ability of public authority and the courts to examine human rights claims. [5]

  3. The government also intends to have a strong “presumption in favour of upholding the right of freedom of expression” [6] and to confine the scope of s.12 to limit the interference with the press and other publishers through injunctions.

  4. The government believes that there has been a proliferation of “frivolous” [7] human rights claims, “not all of which merit court time and public resources”. [8] Thus the government proposed a permission stage to “shift responsibility to the claimant to demonstrate a human rights claim does, in practice, raise a claim which merits the court’s attention and resources” [9] as a result of a significant disadvantage.


Significance


The first outcome is that courts will now have a limited interpretive ability to expand the HRA. Further, parliamentary sovereignty is strengthened, giving Parliament greater control over the scope and limits of rights. It also proposed to limit available remedies to declarations of incompatibility and to remove quashing orders for secondary legislation. It reduces restraints on government, giving Parliament and, by extension, the government greater unsupervised control.





References:

[1] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 183

[2] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 190

[3] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 193

[4] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 186

[5] Rajeev Syal, “Raab’s human rights proposal condemned as ‘blatant power grab’”, (The Guardian,14 December 2021) <https://www.theguardian.com/politics/2021/dec/14/raab-unveils-human-rights-proposals-to-mps-including-bill-of-rights>

[6] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 215

[7] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 221

[8] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 220

[9] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 221

[10] Ministry of Justice, Human Rights Act Reform: A Modern Bill of Rights (CP 588, 2021) para 252-256