Image description: A UK official stands at a podium with a banner behind reading ‘Human Rights and Democracy’
In December 2021, the UK Government released its consultation document proposing changes to the Human Rights Act 1998. That document followed the report of the Independent Human Rights Act Review, established in 2020 to examine, first, the relationship between domestic UK courts and the European Court of Human Rights (ECtHR), and second, the impact of the Human Rights Act 1998 on the relationship between the three branches of state in the UK. Incidentally, the Oxford Human Rights Hub submitted evidence to that latter report. This article considers some of the most important proposed changes.
First, the Government seeks to overhaul the relationship between ECtHR and domestic jurisprudence. Its primary concern is the principle enunciated in R (Ullah) v Special Adjudicator, that UK courts should follow any ‘clear and constant jurisprudence’ of the Strasbourg Court. Instead, the Government prefers the UK courts to follow domestic jurisprudence, and invites them to consider Strasbourg rulings in their context as part of a ‘broader range of case law’ . However, at the same time as promoting this interpretative autonomy, the Government is equally concerned that UK courts will then exercise this autonomy to confer a level of protection above Strasbourg’s standards . To hedge against this risk, the Government proposes to explicitly prescribe the UK courts’ interpretative toolkit, focussing on the text of the rights themselves, other statutory provisions and the common law, domestic precedent, and the travaux préparatoires (preparatory materials) of the European Convention .
For perspective, it is important to note that the Government does not propose withdrawing from the Convention system. Thus, appeals will still lie from the UK courts to Strasbourg, under Article 32 of that Convention – the consultation document remains cognisant of this . Unsuccessful claimants in the UK, who see greater odds of success under ECtHR jurisprudence, will thus be incentivised to approach Strasbourg anyway. Solving this issue was the precise reason for the Human Rights Act 1998. Instead, the Government overlooks the disparate, resource-contingent nature of this burden placed on claimants – in addition to a principled ideal that UK courts should aim to prevent breaches of international obligations where possible.
Second, the UK Government expresses concern that the public is losing confidence in human rights, alleging that this is due to certain structural features (rather than, for example, political rhetoric). In response, there are three discrete proposals. The first is a possible permission stage for human rights claims, akin to that of the ECtHR itself under Article 34 of the European Convention . The Government does not, however, outline why the current system of applications to strike out claims is insufficient. The second proposal is to reduce human rights claims that can be made, where their subject matter is also covered by the private law – to prevent anything more than ‘adequate redress’ . The irony of this suggestion is that Strasbourg awards tend to be much lower than domestic awards: concern over increased compensation is more likely to materialise because of the Government’s proposed repudiation of the Ullah principle. The third proposal is to ‘restrain the imposition and expansion of positive obligations’, preventing individual litigation from distorting the decisions of public authorities . However, this oversimplifies the nature of the Convention in two ways. First, it is an instrument of best practices, insofar as individual claims pursuant to positive obligations seek to redress structural issues that affect all beneficiaries of public services. Second, the Convention already accommodates the value public authority discretion, to a certain extent, in the formulation of positive obligations (see the duty in Osman v UK).
Third, the Government tentatively suggests applying the section 4 ‘declaration of incompatibility’ mechanism to secondary legislation, in addition to primary legislation . This would remove the ability for courts to disapply secondary legislation where it is found to be incompatible with the Convention. Important considerations for this proposal would be (i) empirical data on projected remedial delays if such a system were implemented, and (ii) whether the democratic principle justifying section 6 is more attenuated for secondary legislation.
Other more novel proposals include: barring Article 8 claims to remain in the UK for individuals subject to deportation ; prescribing weighting of criteria in proportionality determinations for qualified rights ’; and requiring courts, in human rights claims, to determine ‘the extent to which a person has fulfilled their own responsibilities’ . Those following the reform efforts should watch carefully for the Government’s forthcoming impact assessment.