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What do the Independent Human Rights Act Review (IHRAR) and the government’s consultation proposals for a new Bill of Rights have in common? Remarkably little, it seems.
When the IHRAR was announced in December 2020 by then Lord Chancellor Robert Buckland QC MP, it was accompanied by some of the usual rhetoric about the courts ‘rewriting’ legislation, but the more hyperbolic claims about foreign criminals and pet cats were absent. The terms of reference given to the IHRAR were relatively narrow and the call for evidence emphasised that it was ‘not considering the substantive rights set out in the Convention’. Instead, the Review was to focus only the operation of the HRA under two themes: the relationship between domestic courts and the ECtHR; and the impact of the HRA on the relationship between the three branches of the state.
However, in its consultation document, launched one year later, the government’s language once again carries echoes of the pet cat oeuvre with a stance premised on the idea of a ‘broader public interest’ that must be ‘safeguarded’ (para 182) from the HRA. In this, they are articulating a problem that lies not so much with the HRA’s impact on the separation of powers and Parliamentary sovereignty (though those remain too) but with ‘the way in which [Convention] rights have been applied in practice’ (para 184).
In other words, the focus is back on how to prevent rights from benefitting the ‘undeserving’ and how to forestall further development of rights through the living tree doctrine.
The drive to ‘strengthen our common law traditions’ and ‘reduce reliance on the Strasbourg case law’, concern about ‘unmeritorious cases’ and ‘incremental expansion of rights without proper democratic oversight’, seeking to limit positive obligations and enhance ‘the role of responsibilities in interpreting qualified rights and awarding compensation’ (para 186) are all themes found not in the IHRAR report but in our present Lord Chancellor, Dominic Raab MP’s book, The Assault on Liberty: What Went Wrong with Rights (London: Fourth Estate, 2009).
It is, perhaps, unsurprising that the government’s approach to reform of the HRA has been heavily influenced by the Justice Secretary’s previous writing on the subject. However, this book was published during the first decade of the HRA and the interpretation and application of the HRA has evolved considerably since then, not least in relation to how the UK courts take into account the Strasbourg jurisprudence and the use of s 3 powers of interpretation, as the IHRAR panel painstakingly set out in its report.
It is particularly unfortunate that, despite the IHRAR’s patient exposition of the HRA jurisprudence, some of the hyperbolic misrepresentations of the Act found in Raab’s book make their way into the Ministry of Justice consultation document. Compare, for example:
Raab : ‘[s 3 gives] domestic judges a broad licence to rewrite British law to give effect to new rights made in Strasbourg... In some cases, this judicial creativity has rubbed off in the UK courts, with judges making full use of the Human Rights Act to expand human rights law… The result of the UK approach has been unnecessarily to import a raft of new human rights – invented in Strasbourg – thereby circumventing the proper role of our democratically elected Parliament in making new law’ (pp 142-3).
IHRAR : ‘UK Courts are not effecting amendment under s 3. They are giving effect to Parliament’s will and doing so by determining, as they do in all cases, the legal meaning of legislation… [The] weight of evidence before the Panel supported the view that UK Courts have not… misused s 3 to misconceive Parliament’s intention in enacting legislation…’ (pp 234-5).
Consultation : ‘Our view is that the Act, as it has been applied in practice, has moved too far towards judicial amendment of legislation which can contradict, or be otherwise incompatible with, the express will of Parliament... s 3 compels the court to expand the scope of its interpretive duty beyond what is appropriate for an unelected body…. We believe that s 3 has resulted in an expansive approach with courts adapting legislation’ (paras 233-236).
The simplistic mischaracterisations that are a feature of both the consultation and Raab’s book are not mere rhetorical flourishes but go to the heart of why some of the proposed reforms are likely to undermine not only the HRA but also the government’s own objectives.
For example, in relation to s 2, the government claims that the UK courts’ current approach to taking into account Strasbourg jurisprudence has ‘indirectly resulted in the supremacy of the UK Supreme Court being undermined by Strasbourg’ (para 198). The government’s proposals seek to reduce the influence of the ECtHR by directing the UK courts to begin with ‘the text of the rights themselves’ and if necessary ‘have recourse to the travaux préparatoires’ rather than the ECtHR interpretation of the rights (para 195). This is explicitly designed to ‘mitigate the incremental expansion of rights driven by the Strasbourg Court’ (para 197).
However, in contrast, the IHRAR set out in detail the current ‘modified Ullah’ approach, characterised by nuance and flexibility, and which gives ‘proper weight to context-specific factors, to the need not to follow the ECtHR and to go beyond it in appropriate cases’ (p 69). In seeking to weaken the influence of the ECtHR in the UK, there is a real risk that the government’s proposals would actually weaken the influence of UK jurisprudence in Strasbourg. As the Review outlines, the explicit analysis of ECtHR case law in UK judgments ‘enables the ECtHR to more robustly apply the principle of subsidiarity and the margin of appreciation’ (p 82).
Given that the Review was only commissioned 14 months ago, it is unfortunate to see several reforms proposed in the government’s consultation that could have usefully been included within the remit of the Review but were omitted from the Terms of Reference, not least the proposals in relation to s 6. The government proposes to expand the exception in s 6(2)(b) (that applies where a public authority was giving effect to primary legislation that could not be read or given effect in a way that is compatible with Convention rights) to include circumstances where the public authority is giving effect to the clear intentions of Parliament (para 274). This proposal is based on the premise that s 6 has created ‘confusion and risk aversion for frontline public services’ (para 132-140) and undermined public protection as the police and armed forces ‘find operational decisions challenged’ and ‘have a court retrospectively second-guess their professional judgement exercised under considerable pressure’ (para 142).
It is regrettable that the Review was not able to consider the accuracy of the premise underlying such potentially far-reaching reforms, which could significantly undermine individual rights protection in the UK. Instead, the consultation’s language and examples again mirror those contained in Raab’s book rather than any independent or evidenced analysis of the impact of s 6 on public authorities.
The more substantive questions of the balance between speech and privacy, between rights and responsibilities, of limiting access to Convention rights in the context of deportation, and whether a specific right to jury trial is necessary, could also have been usefully informed by the extensive research, in-depth discussion with a variety of stakeholders, and objective analysis that were characteristic of the Review.
The government makes around 40 proposals, though some present alternative options rather than separate and distinct proposals. These proposals bear little resemblance to the recommendations made by the IHRAR panel. In fact, more of the government’s proposals are ideas that were rejected by the Review than were recommended by it and around half of the government’s proposals were not considered by the Review at all, in most cases because they were outside of its terms of reference.
The IHRAR recommended first, and in my view most importantly, that there should be more public education about the UK constitution and HRA in schools, universities, and adult education. The Review itself could form the basis of that education. It is a thorough and clear exposition of the Act, its interpretation and use by the courts, and its impact on the separation of powers, Parliamentary sovereignty, and the relationship between the UK and Strasbourg. However, the government appears to have ignored this recommendation and in general the Review appears to have asserted little influence on the government’s proposals.
Nicola Barker is a Professor of Law at the University of Liverpool. Her research project, From the Human Rights Act to a British Bill of Rights: A Feminist Critique, was funded by the British Academy.
What do the Independent Human Rights Act Review (IHRAR) and the government’s consultation proposals for a new Bill of Rights have in common? Remarkably little, it seems.
When the IHRAR was announced in December 2020 by then Lord Chancellor Robert Buckland QC MP, it was accompanied by some of the usual rhetoric about the courts ‘rewriting’ legislation, but the more hyperbolic claims about foreign criminals and pet cats were absent. The terms of reference given to the IHRAR were relatively narrow and the call for evidence emphasised that it was ‘not considering the substantive rights set out in the Convention’. Instead, the Review was to focus only the operation of the HRA under two themes: the relationship between domestic courts and the ECtHR; and the impact of the HRA on the relationship between the three branches of the state.
However, in its consultation document, launched one year later, the government’s language once again carries echoes of the pet cat oeuvre with a stance premised on the idea of a ‘broader public interest’ that must be ‘safeguarded’ (para 182) from the HRA. In this, they are articulating a problem that lies not so much with the HRA’s impact on the separation of powers and Parliamentary sovereignty (though those remain too) but with ‘the way in which [Convention] rights have been applied in practice’ (para 184).
In other words, the focus is back on how to prevent rights from benefitting the ‘undeserving’ and how to forestall further development of rights through the living tree doctrine.
The drive to ‘strengthen our common law traditions’ and ‘reduce reliance on the Strasbourg case law’, concern about ‘unmeritorious cases’ and ‘incremental expansion of rights without proper democratic oversight’, seeking to limit positive obligations and enhance ‘the role of responsibilities in interpreting qualified rights and awarding compensation’ (para 186) are all themes found not in the IHRAR report but in our present Lord Chancellor, Dominic Raab MP’s book, The Assault on Liberty: What Went Wrong with Rights (London: Fourth Estate, 2009).
It is, perhaps, unsurprising that the government’s approach to reform of the HRA has been heavily influenced by the Justice Secretary’s previous writing on the subject. However, this book was published during the first decade of the HRA and the interpretation and application of the HRA has evolved considerably since then, not least in relation to how the UK courts take into account the Strasbourg jurisprudence and the use of s 3 powers of interpretation, as the IHRAR panel painstakingly set out in its report.
It is particularly unfortunate that, despite the IHRAR’s patient exposition of the HRA jurisprudence, some of the hyperbolic misrepresentations of the Act found in Raab’s book make their way into the Ministry of Justice consultation document. Compare, for example:
Raab : ‘[s 3 gives] domestic judges a broad licence to rewrite British law to give effect to new rights made in Strasbourg... In some cases, this judicial creativity has rubbed off in the UK courts, with judges making full use of the Human Rights Act to expand human rights law… The result of the UK approach has been unnecessarily to import a raft of new human rights – invented in Strasbourg – thereby circumventing the proper role of our democratically elected Parliament in making new law’ (pp 142-3).
IHRAR : ‘UK Courts are not effecting amendment under s 3. They are giving effect to Parliament’s will and doing so by determining, as they do in all cases, the legal meaning of legislation… [The] weight of evidence before the Panel supported the view that UK Courts have not… misused s 3 to misconceive Parliament’s intention in enacting legislation…’ (pp 234-5).
Consultation : ‘Our view is that the Act, as it has been applied in practice, has moved too far towards judicial amendment of legislation which can contradict, or be otherwise incompatible with, the express will of Parliament... s 3 compels the court to expand the scope of its interpretive duty beyond what is appropriate for an unelected body…. We believe that s 3 has resulted in an expansive approach with courts adapting legislation’ (paras 233-236).
The simplistic mischaracterisations that are a feature of both the consultation and Raab’s book are not mere rhetorical flourishes but go to the heart of why some of the proposed reforms are likely to undermine not only the HRA but also the government’s own objectives.
For example, in relation to s 2, the government claims that the UK courts’ current approach to taking into account Strasbourg jurisprudence has ‘indirectly resulted in the supremacy of the UK Supreme Court being undermined by Strasbourg’ (para 198). The government’s proposals seek to reduce the influence of the ECtHR by directing the UK courts to begin with ‘the text of the rights themselves’ and if necessary ‘have recourse to the travaux préparatoires’ rather than the ECtHR interpretation of the rights (para 195). This is explicitly designed to ‘mitigate the incremental expansion of rights driven by the Strasbourg Court’ (para 197).
However, in contrast, the IHRAR set out in detail the current ‘modified Ullah’ approach, characterised by nuance and flexibility, and which gives ‘proper weight to context-specific factors, to the need not to follow the ECtHR and to go beyond it in appropriate cases’ (p 69). In seeking to weaken the influence of the ECtHR in the UK, there is a real risk that the government’s proposals would actually weaken the influence of UK jurisprudence in Strasbourg. As the Review outlines, the explicit analysis of ECtHR case law in UK judgments ‘enables the ECtHR to more robustly apply the principle of subsidiarity and the margin of appreciation’ (p 82).
Given that the Review was only commissioned 14 months ago, it is unfortunate to see several reforms proposed in the government’s consultation that could have usefully been included within the remit of the Review but were omitted from the Terms of Reference, not least the proposals in relation to s 6. The government proposes to expand the exception in s 6(2)(b) (that applies where a public authority was giving effect to primary legislation that could not be read or given effect in a way that is compatible with Convention rights) to include circumstances where the public authority is giving effect to the clear intentions of Parliament (para 274). This proposal is based on the premise that s 6 has created ‘confusion and risk aversion for frontline public services’ (para 132-140) and undermined public protection as the police and armed forces ‘find operational decisions challenged’ and ‘have a court retrospectively second-guess their professional judgement exercised under considerable pressure’ (para 142).
It is regrettable that the Review was not able to consider the accuracy of the premise underlying such potentially far-reaching reforms, which could significantly undermine individual rights protection in the UK. Instead, the consultation’s language and examples again mirror those contained in Raab’s book rather than any independent or evidenced analysis of the impact of s 6 on public authorities.
The more substantive questions of the balance between speech and privacy, between rights and responsibilities, of limiting access to Convention rights in the context of deportation, and whether a specific right to jury trial is necessary, could also have been usefully informed by the extensive research, in-depth discussion with a variety of stakeholders, and objective analysis that were characteristic of the Review.
The government makes around 40 proposals, though some present alternative options rather than separate and distinct proposals. These proposals bear little resemblance to the recommendations made by the IHRAR panel. In fact, more of the government’s proposals are ideas that were rejected by the Review than were recommended by it and around half of the government’s proposals were not considered by the Review at all, in most cases because they were outside of its terms of reference.
The IHRAR recommended first, and in my view most importantly, that there should be more public education about the UK constitution and HRA in schools, universities, and adult education. The Review itself could form the basis of that education. It is a thorough and clear exposition of the Act, its interpretation and use by the courts, and its impact on the separation of powers, Parliamentary sovereignty, and the relationship between the UK and Strasbourg. However, the government appears to have ignored this recommendation and in general the Review appears to have asserted little influence on the government’s proposals.
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