Reforming the HRA: Background

The background to the potential reform of the Human Rights Act (HRA)
involves various factors, including media misconceptions and high-
profile examples that some view as striking an inappropriate balance
between individual rights and broader societal interests.

Media Misconceptions:
• Exaggeration of Entitlements: Some media portrayals may assert an
entitlement under the HRA without a nuanced understanding of the
legal context, contributing to misconceptions about the Act’s scope.
• Selective Reporting: High-profile cases may be sensationalized, leading
to a public perception that the HRA is being misused or applied in ways
that undermine common sense.
A YOB who spent all day on a roof lobbing bricks at cops was
“rewarded” with a KFC takeaway … because of his human rights’.
‘Finger-nickin Good Farce’, The Sun, 7 June 2006.

High-Profile Unpopular Examples:

• Prisoner Votes: The question of prisoners’ voting rights has been a
contentious issue, with some arguing that allowing prisoners to vote
goes against public opinion and undermines the punitive aspect of
incarceration.
• Supreme Court Rulings: Cases like R (F) v Secretary of State for the
Home Department have faced criticism from political figures,
suggesting frustration with court decisions that are perceived as
conflicting with common sense or public sentiment.

Key Points of Controversy:

• Prisoners’ Rights: The debate on prisoners’ rights, including voting
rights and broader issues, has been a focal point. Some argue that the
HRA has been used to extend rights to prisoners in ways that are
unpopular with the public.
• Immigration Control: Concerns about immigration control, particularly
regarding Article 8 claims related to family reunification, have fueled
debates on striking the right balance between individual rights and
national interests.
• Judicialisation of Decision-Making: There is a perception that the HRA,
especially sections 2-4, has led to increased judicial involvement in
decision-making, prompting discussions about the proper balance
between parliamentary and judicial authority.
 Case Study on Prisoners’ Voting Rights Controversy:

UK Law:
• Representation of the People Act 1983, s3(1): States that a convicted
person detained in a penal institution is legally incapable of voting
during the sentence.

ECHR Art 3, Protocol 1:

• Art 3 requires free elections at reasonable intervals, ensuring the free
expression of people’s opinions in the choice of the legislature.

ECtHR Ruling:
• Hirst v United Kingdom (No 2) (2006):
• ECtHR declared the UK’s blanket ban on prisoners’ voting rights
incompatible with Article 3 of Protocol 1.
• Criticized the indiscriminate nature of the restriction, emphasizing it
applied irrespective of the sentence’s length or the offense’s nature.

UK Courts’ Response:
• Smith v Scott [2007]:
• The UK courts made a formal declaration of incompatibility regarding
the ban on prisoners’ voting rights.

Political Rhetoric:
• Some political figures, including then-Prime Minister David Cameron,
expressed strong opposition to granting voting rights to prisoners,
citing their loss of rights upon incarceration.

Council of Europe’s Response:

• The Council of Europe’s Committee of Ministers expressed serious
concern over delays in introducing legislation to address the issue.
• Ongoing regret was expressed about the persistence of the blanket ban
despite calls for change.

2018 Administrative Changes:

• Changes included working with the judiciary to clarify voting
restrictions for offenders sentenced to prison and amending guidance
regarding voting rights during temporary release on license.
Council of Europe Committee’s Closure:
• In September 2018, the Committee of Ministers declared that the UK
had implemented measures addressing concerns raised in the Hirst
case. The group of cases was considered closed.

Dialogue and Criticism:

• Critics argue that the UK government’s amendments represent

minimum compliance, reflecting an aversion to prisoners’ voting rights.
• Elizabeth Adams highlights concerns that the amendments undercut
democratic processes and weaken the protection of rights, describing it
as an assault on democratic values.

II. Previous Reform Proposals

2010 Conservative Manifesto:

• Pledged to replace the HRA with a UK Bill of Rights to protect freedoms
from state encroachment and encourage social responsibility.

Conservatives’ Proposals (2014):

• Proposed the repeal of the HRA.
• Suggested incorporating the full text of the Convention into primary
legislation.
• Aimed to clarify Convention rights to strike a balance between rights
and responsibilities.
• Sought to break the formal link between British courts and the
European Court of Human Rights (ECtHR).
• Planned to end the requirement for British courts to consider ECtHR
rulings.
• Intended to prevent the ECtHR from forcing the UK to change its laws.
• Aimed to limit the use of human rights laws to the most serious cases.

2015 Conservative Manifesto:

• Promised to scrap the HRA and introduce a British Bill of Rights.
• Planned to break the formal link between British courts and the ECtHR,
making the UK Supreme Court the ultimate arbiter of human rights
matters.
2017 Conservative Manifesto:

• Committed not to repeal or replace the HRA during the Brexit process.
• Stated an intention to consider the human rights legal framework post-
Brexit.
• Assured that the UK would remain a signatory to the European
Convention on Human Rights during the next parliament.

2020-22 Reform Proposals

III.

A. Reform Back on the Agenda:

• The Conservative Party expressed the intention to update the
HRA and administrative law to strike a balance between
individual rights, national security, and effective government.

B. Independent Human Rights Act Review (IHRAR):

• Initiated on December 7, 2020, and concluded with a 580-page
report released on December 14, 2021.
• Explored two main themes: the relationship between
domestic courts and the European Court of Human Rights
(ECtHR), and the impact of the HRA on the relationship
between the judiciary, the executive, and the legislature.

IHRAR Questions:

• Examined the application of the duty to “take into account”

ECtHR jurisprudence under section 2.
• Investigated the approach of domestic courts to issues within
the margin of appreciation.
• Considered the effectiveness of judicial dialogue between
domestic courts and the ECtHR.
• Evaluated the impact of the HRA on the separation of powers
in the UK.
IHRAR Findings:

• Responses, including those from NGOs and academics, largely

indicated no need for significant changes to the HRA model.
• Empirical data suggested no evidence of judicial overuse of
HRA Section 3.
• Comparative analysis indicated that judicial power under the
UK model remains weak.

IHRAR Proposals:
• Recommended minor reforms, such as considering common
law prior to ECHR case law and providing clarity to ensure
Strasbourg case law is not perceived as binding.
• Proposed minor changes regarding the use of remedial orders
(s10 HRA).

C. Ministry of Justice Consultation on a Bill of Rights:

• Issued proposals for HRA reform on December 14, 2021, concurrent
with the IHRAR Report’s publication.
• Confirmed the government’s intent to repeal the HRA by a Bill of Rights
without withdrawing from the ECHR.

Substantive Proposals:
• Emphasized consideration of common law rights before recourse to the
ECHR.
• Highlighted freedom of expression and trial by jury.
• Suggested a more restrictive formulation of HRA Section 2.
• Discouraged courts from introducing positive obligations, especially
under Article 8.
• Introduced the idea of rights coupled with social responsibilities.
• Proposed new admissibility criteria to expedite the dismissal of
unmeritorious human rights cases.
• Considered extraterritorial application of the Convention.

Amendments and Changes:

• Proposed significant changes to Section 3 to address the perceived

overstepping of judicial bounds.
 • Suggested limited changes to Section 4, reducing the role of remedial
orders (s.10 HRA).
• Recommended greater parliamentary scrutiny of adverse Strasbourg
judgments.
• Contemplated possible changes to Section 6 (duties for private
providers of contracted-out services).

IV. The (Withdrawn) Bill of Rights Bill 2022-23

Repeal of Section 3 HRA:
• The proposed Bill entailed the complete repeal of Section 3 of the
Human Rights Act (HRA), eliminating the duty to read legislation
compatibly with Convention rights “so far as it is possible to do so.”

Changes to Section 2 HRA (Clause 3 of the Bill):

• The Bill introduced a revised version of Section 2 HRA, specifying the
Supreme Court as the ultimate judicial authority on questions related
to Convention rights under domestic law.

Interpretation of Convention Rights - Clause 3 (Bill of Rights):

• Supreme Court Authority: Acknowledges the Supreme Court as the final
arbiter on questions related to Convention rights within domestic law.
Interpretation Criteria:
• Emphasizes consideration of the text of the Convention right.
• Allows the court to consider the preparatory work of the Convention.
• Permits reference to the development of similar rights under common
law.
• Requires compliance with Sections 4 to 8 of the Bill.
Restrictions on Interpretation:
• A court must not adopt an interpretation expanding protection beyond
Strasbourg jurisprudence unless certain conditions are met.
• Allows divergence from Strasbourg jurisprudence, subject to conditions.
Exception for Freedom of Speech:
• Provides an exception where a court can adopt an interpretation of a
Convention right related to freedom of speech even if it exceeds
Strasbourg standards.
Rules of Evidence:
• Specifies the manner in which evidence is to be given for the purposes
of this section in court proceedings.
Interpretation Scope:
• Courts must interpret Convention rights in line with the minimum
standards set by Strasbourg jurisprudence unless specific conditions,
especially related to freedom of speech, are met.

Affirmation of Domestic Courts’ Consideration:

• Domestic courts are required to consider the text of the Convention,
preparatory work, and common law rights.

Foregoing Earlier Formulations:

• The proposed clause abandons previous formulations relying on
international and comparative material beyond the Convention but
retains consideration of the Convention text and preparatory work.

As masterman notes Supreme Court’s Constrained Role:

While affirming the Supreme Court’s role as the ultimate authority on human
rights in the UK, the Bill significantly restricts the scope of interpretation,
aligning it closely with Strasbourg standards.

Other important changes in bills includes:

1. Freedom of Expression (Clause 4):
• Introduced heightened protection for freedom of expression, allowing
courts to provide increased safeguards in this regard.
2. Right to Trial by Jury (Clause 9):
• Explicitly protected the right to trial by jury, reinforcing its significance
within the legal framework.
3. Restrictions on Positive Obligations (Clause 5):
• Imposed significant limitations on the duty of public authorities to
comply with positive obligations under the European Convention on
Human Rights (ECHR).
4. ‘Public Protection’ Clause (Clause 6):
• Introduced a clause requiring courts to balance the rights of offenders
with those of the public in cases brought by offenders.
5. Legislative Deference (Clause 7):
• Entrenched deference to the legislature in the interpretation of
Convention rights, particularly in cases involving the balancing of
competing aims.
6. Restrictions on Deportation Decisions (Clause 8):
• Imposed significant restrictions on the possibility of finding deportation
decisions contrary to Article 8 ECHR.
7. Limitations on Extraterritorial Application (Clause 14):
• Introduced significant restrictions on the extraterritorial application of
the Bill to overseas military operations.
8. Procedural Restrictions (Clause 15):
• Added procedural restrictions on bringing a case against a public
authority under the Bill, including a permission stage requiring proof of
significant disadvantage suffered by the victim.
9. Substantive Changes:
• Few substantive changes to the declaration of incompatibility
mechanism (Section 4 HRA, reflected in Clause 10 of the Bill of Rights).
• Limited changes to the concept of public authorities (Section 6 HRA,
reflected in Clauses 12 and 34 of the Bill of Rights).

Despite these proposed changes, the Bill faced withdrawal. On June 27, 2023,
Justice Secretary Alex Chalk announced the government’s decision not to
proceed with the Bill of Rights. The government expressed commitment to an
updated and effective human rights framework, addressing specific issues in
relevant legislation rather than pursuing the comprehensive Bill of Rights

Conclusion: Groundhog Day?

V.

Conclusion: A Continuing Debate

The debate surrounding the Human Rights Act (HRA) and the UK’s
relationship with the European Convention on Human Rights (ECHR)
persists, despite the recent withdrawal of the proposed Bill of
Rights. The current government indicates a commitment to
addressing specific issues with the HRA rather than pursuing
comprehensive reform.

An example of this approach is the Illegal Migration Act 2023, which

came into partial effect on September 28, 2023. The Act expands
the Home Secretary’s powers in immigration and asylum control,
raising controversies, particularly in relation to human rights
protections. Section 1(5) of the Act explicitly excludes the
application of Section 3 of the HRA, narrowing the scope of human
rights interpretations.
A key element of the Act involves the legal duty on the Home
Secretary to remove individuals arriving irregularly to the UK, either
to their home country or to a designated safe third country like
Rwanda. However, a recent unanimous Supreme Court decision
(AAA and others v SSHD [2023] UKSC 42) found the “Rwanda
scheme” unlawful, citing substantial grounds for potential ill-
treatment and refoulement. The decision invoked Article 3 of the
ECHR, emphasizing the role of the HRA in preventing removal to
countries where there is a risk of breaching human rights.

This legal development has reignited discussions on the UK’s

relationship with the ECHR. The government’s piecemeal approach
to narrow the scope of the HRA, as seen in the Illegal Migration Act,
highlights ongoing tensions between immigration control and
human rights protection. The broader conversation on the future of
human rights in the UK remains dynamic and subject to ongoing
developments.