Taking Human Rights Act reform seriously

14th December 2021

The best way to understand the politics and law of Human Rights Act reform is to realise there are two separate things going on.

The first is – with scare quotes – the debate over the “Human Rights Act” – where the Act’s opponents (and many supporters) overstate the importance of that symbolic legislation.

There are those with Very Strong Opinions about the Act who, when probed, cannot give any particulars for the opinions they hold and express.

And then there is – without scare quotes – the Human Rights Act 1998 – a mild and unambitious piece of legislation that generally has limited practical effect.

There is little connecting the heated debate over the “Human Rights Act” with the actual Human Rights Act.

And, as this blog has previously averred, if the Act had only been given a dull name like the Interpretation and Construction And Related Purposes (European Convention of Human Rights) Act, then a great deal of antipathy would not have existed.

The title of the legislation is just too provocative for some people, regardless of the substance.

*

Today there were two significant developments about possible reform to the Act.

The first was the publication of a 580 page report of an independent review of the Human Rights Act commissioned by the government.

I have not yet read and digested this report, but the impression given is that the report does not urge fundamental changes to the Act.

The second development was the Ministry of Justice launching a consultation into the Act, with a return date of March 2022.

My initial impression is that the consultation is because the government may not have got the recommendations it wanted from the independent review and so is going to ‘consult’ that it gets the responses it wants.

*

Any legislation which flows from the consultation would presumably be for the 2022-23 session of parliament, which takes us to the run-up to the next general election.

This means that it is unlikely that Human Right Act reform will be done, as it should be, on a cross-party basis.

Instead any reforms to the Act will be done in an increasingly politicised context.

For the best understanding of the government’s approach, one should not go to anything the Lord Chancellor and Justice Secretary says, as he is unlikely to have mastered the detailed issues raised addresses in the independent report and the consultation paper.

The best insight into the government’s general approach is in this short article for the Law Society Gazette by the capable David Wolfson QC, the Ministry of Justice minister in the House of Lords.

Wolfson avers that there is a distinction to be made between the rights as set out in the convention (which are fine) and how they are interpreted by the European Court of Human Rights in Strasbourg.

He has nothing against the wording of the Convention.

Left to United Kingdom courts, he suggests, the Convention rights would and should be interpreted soundly.

It is not a bad argument, but there are problems.

For example, it will still be the Strasbourg court that will determine any petitions brought against the United Kingdom for any failure to protect Convention rights – and so all that may be created ultimately is delay and bureaucracy in the event of interpretative divergence

And the prospect of more cases directly before the Strasbourg court will not be welcomed by the security and intelligence services, who would rather have the current situation where most cases stay with nod-along British judges.

Another problem is the Good Friday Agreement, under which the European Convention on Human Rights (that is, the Strasbourg version) has to be directly enforceable in the local courts of Northern Ireland.

If Northern Irish complainants are not able to assert their Convention rights as they would be respected in Strasbourg, but only watered-down domestic versions, then there is the question whether the is a possible breach of the Good Friday Agreement.

These hard problems are not going to go away.

*

One fundamental misconception in the debate about Human Rights Act – and the “Human Rights Act”  – is that the Very Strong Opinions of its opponents can be translated into actual legislative changes.

There have been several attempts since 2010 by Conservative politicians to reform the Act, with lots of stirring language about a British Bill of Rights.

They often also say they want to “modernise” the Act – though somehow this “modernisation” is about rejecting the Convention as a living instrument, which is rather contradictory if you think about it.

Reforming the actual Act – and not the Turnip Ghost that its opponents have conjured up to give themselves a scare – will be a long legislative slog, and for very little point.

So rare are cases that turn on Convention points alone that, even with the proposed tinkering, it is hard to imagine many of those exceptional cases actually being determined differently.

And you would think that Lord Chancellor and Justice Secretary – as head of a justice system in crisis and a prison system needing radical improvement – would not devote scarce ministerial time and departmental resources to such an exercise.

But that would be to take any of this seriously.

******

This daily law and policy blog needs your help to continue for another year – for the benefit of you and other readers.

Each free-to-read post takes time and opportunity cost.

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.

If you value this free-to-read and independent legal and policy commentary – both for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.

*****

You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).

******

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated.

Comments will not be published if irksome.