HSF Responds To The Government's Consultation On Human Rights Reform

• Published date: 15 March 2022
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law, Human Rights
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa

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...