The main window for response to the Government’s consultation paper on the reform of the Human Rights Act 1998 (“HRA“) has now closed. The consultation paper proposed an overhaul of the existing human rights regime in the UK by replacing the HRA with a new Bill of Rights. The proposals involved giving greater legislative guidance to courts on key human rights issues, tweaking some of the existing legislation, and cultivating a distinctly British angle to domestic human rights law. A summary of the proposals can be read here.
In this blog post, we summarise some of the key aspects of our response to the consultation paper. In general, we think the system works well as it currently stands. We are concerned that changes may result in misalignment with the jurisprudence from the European Court of Human Rights (“ECtHR“). Such misalignment is likely to cause more cases to seek redress directly from the ECtHR, defeating the original purpose of the HRA, which was to make rights accessible domestically. We also consider that the courts are best placed to determine human rights law, and therefore we warn against an overly prescriptive legislative regime that may inhibit the courts’ discretion. Please see below for more detail on some of the key issues. You can find our full response here.
- Reform of section 2 concerning the status of Strasbourg caselaw. We do not consider it necessary to ‘soften’ the wording of section 2 or to explicitly suggest that domestic courts can draw on a wide range of sources when determining human rights issues. We believe that the current arrangements strike the right balance: they indicate that courts should generally align themselves with case law from the ECtHR while allowing for departure in appropriate cases.
- Reform of section 3 concerning how legislation should be interpreted. We think that any attempt to provide more guidance in legislation that courts should consider the will of Parliament is not likely to have a significant effect. Courts already accept that section 3 cannot be used to ‘go against the grain’ of the legislation. Adjusting section 3 is likely to cause confusion and bring our domestic jurisprudence out of step with that of the ECtHR.
- Permission stage. Our view is that a permission stage for human rights cases would not be desirable but would simply make the process of bringing a claim more expensive and cumbersome. Additionally, if the proposed ‘significant disadvantage’ test creates a higher threshold than the current ‘victim’ test, there is a risk that meritorious claims will not be heard. It may be that there are cases where the full extent of the harm caused to the claimant does not come fully to light at the permission stage.
- Reduction of liability for public authorities. We do not support the proposed attempts to reduce the liability of public authorities. Regarding the proposals to limit the extent of public bodies’ positive obligations, although we accept that positive obligations do place a burden on public authorities, we think that in some circumstances they are necessary in order to give proper effect to rights. Equally, we do not think that public bodies should be afforded a greater defence when acting in accordance with the will of Parliament than that already present in section 6(2) of the HRA.
- Proportionality. Proportionality is an inherently flexible principle that does not lend itself well to codification. Legislative guidance on the principle is likely to lead to uncertainty and unnecessary litigation. Moreover, our view is that any change is unnecessary. Courts already give significant deference to Parliament and the executive on appropriate matters. Legislative guidance on the principle of proportionality is likely to restrict the courts’ ability to apply the principle flexibly.
- Declarations of incompatibility. We contend that while the declaration of incompatibility mechanism works well in relation to primary legislation, it is not necessary in the context of secondary legislation, because the same democratic concerns do not arise. Secondary legislation is normally passed quickly by ministers without, in practice, Parliamentary scrutiny. We do not think that the declaration of incompatibility mechanism should replace the courts’ existing power, explained in RR (AP) v Secretary of State for Work and Pensions  UKSC 52, to disapply secondary legislation.
- Remedies. We do not think that any more guidance is needed for courts to determine the quantum of damages in human rights cases. The courts already take into account a wide range of considerations when determining the quantum of damages and are best placed to make fact-specific assessments in each case to achieve an equitable outcome.