Culture Wars and Constitutional Statutes: The Government’s Proposed Human Rights Act Reforms

by | Dec 19, 2021

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About Alan Greene

Alan Greene Reader in Constitutional Law and Human Right at Birmingham Law School, University of Birmingham

This week, in response to the Independent Human Rights Act Review’s report, the Government published its proposals to reform the Human Rights Act (HRA) and a call for further submissions on its proposals. A comprehensive analysis of all of the Government’s proposals would not be possible in this short two-part post; that stated, whether they deserve such an in-depth response is questionable.

The Relationship with the European Court of Human Rights

Much of the Government’s proposals are not new. In 2014, the Conservatives published sparse plans to introduce a British Bill of Rights that would  ‘restore sovereignty to Westminster,’ ensure that the European Court of Human Rights is no longer binding over the Supreme Court, that the European Court of Human Rights (ECtHR) is no longer able to order a change in UK law, and that there is a proper balance between rights and responsibilities. Former Conservative Attorney General observed that this 2014 document contained ‘a number of howlers’, not least the idea that the European Court of Human Rights is binding over the Supreme Court. As any First Year Public Law student knows, section 2 HRA only requires UK courts to ‘take into account’ Strasbourg jurisprudence; it is not binding over them. And while the jurisprudence of UK courts in the early days of the HRA interpreted this narrowly, effectively ‘mirroring’ Strasbourg jurisprudence, there has been an evolution from this position in recent years. Of course, the Government knows this, which is why its grand solution to this seemingly gargantuan problem that it has been harping on for years about is to allow domestic courts to ‘draw on a wide range of law when reaching decisions on human rights issues.’

This is arguably not a change but something that already occurs. This is evident from the Independent Human Rights Act Review’s suggestion that section 2 should be amended to codify the evolution in section 2 seen in cases like Osborn v Parole Board and Kennedy v Charity Commission where the Supreme Court stated that applicants should make recourse to the common law before relying on Convention rights.

Permission Stage?

One of the most worrying  proposals  that would make a concrete impact on people’s ability to take human rights cases to court is the suggestion of introducing an additional permission stage to litigation. This stage would ‘require claimants to demonstrate that they have suffered a significant disadvantage before a human rights claim can be heard in court.’  The language of ‘significant disadvantage’ mirrors that seen in the admissibility criteria of the ECtHR introduced by protocol 14. However, that change was introduced in order to tackle the serious backlog in case law facing the court. No such backlog faces domestic courts. Relatedly, the proposal makes reference to ‘similar case management conditions’ in other jurisdictions like the German Federal Constitutional Court. Again, however, the filtering mechanism of an apex court in a legal order is wholly different from introducing an additional procedural stage at first instance before a court can even hear the case in full. This shoddy comparative analysis would be out of place in an undergraduate essay but has somehow managed to make its way into a Government report.

The Scope of Positive Obligations

Problems also abound when looking at the Government’s proposals to enhance personal responsibility while also seeking to weaken the positive obligations on the part of states to protect and vindicate rights. The idea that human rights can be protected solely by the state refraining from acting is one that has long been dispelled. No more so is this evident than during the pandemic where a strong case can be made that states have a positive obligation to protect people’s lives by taking steps to control the spread of the virus.

Often, positive obligations kick-in with regards to particularly vulnerable people such as those in state-run institutions like hospitals and prisons. This latter category of the ‘undeserving’ of rights may play well with a perceived punitive electorate and red-top newspapers but it has no place in a bill of rights that should acknowledge the rights of people by virtue of the fact that they are people. Equally problematic therefore is the emphasis the Government’s report places on amending a British Bill of Rights to place a heavier emphasis on personal responsibility.

Playing Politics with the HRA

Ultimately, these proposals are solutions in search of a problem. The motivation behind them is not to address some serious legal shortfalls affecting the HRA; instead, it is in their political utility. This is most evident in the Government’s proposals to amend protections pertaining to freedom of expression. These are couched in the language of protecting important manifestations of this right such as a free press and academic freedom. What is difficult to identify, however, is how this is under threat from the ECtHR save for a brief allusion to a case against Slovakia. If anything, the ECtHR has been pivotal in protecting press freedom in the UK as seen in cases like the Sunday Times v UK and The Observer and Guardian v UK.

More telling about the Government’s motivation to protect free speech is the reference to academic freedom, hinting that it is somehow under threat from “woke snowflakes” incapable of listening to criticism. The culture wars are coming to a constitutional statute near you soon.

We are left therefore with proposals which make minimal changes in some areas, substantially weaken human rights in others, but will ultimately fulfil their political function of “throwing some red meat” to the base. Criticisms are already ten-a-penny and no doubt will increase in the months ahead. But in an age of populism where people have had quite enough of experts thank you very much, will any of this criticism make a difference? All we can do is try but I do not hold my breath.

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