On 14th December 2021, the UK Government published the long-awaited independent report on the Human Rights Act written by the Panel of the Independent Human Rights Act Review (IHRAR), along with its own consultation, ‘Human Rights Act Reform: a Modern Bill of Rights’

The IHRAR, established in December 2020, looked at the relationship between domestic courts here in the UK and the European Court of Human Rights, and the impact that the Human Rights Act has had on the relationships between the Judiciary, the Government, and Parliament. The Report summarises the Panel’s findings and looks at how the Human Rights Act works in practice, who it protects, and how it is used, and make suggestions of how it should work in the future. The Government’s consultation sets out wide ranging plans to replace our Human Rights Act with a Bill of Rights. This goes much further than the IHRAR recommended.

There is a lot of confusion about what the IHRAR report is, what the government consultation is, and a need for clear information about the law in question – our Human Rights Act. This Explainer provides a plain language breakdown of the relevant issues.

Click here to read a summary of what's happened so far.

What is the Human Rights Act?

The Human Rights Act is the UK law that exists to ensure that everyone’s rights are respected and protected here at home. Our Human Rights Act takes 16 of the fundamental human rights, the UK helped write, in the European Convention on Human Rights and pulls them down into our law here at home. The Government is not saying they want to change these rights, rather how these rights can be enforced. Importantly, it is the Human Rights Act which sets out how these rights can be enforced here in the UK. It puts a legal duty on public bodies to respect, protect and fulfil our rights. This legal duty must be met at all times, especially during times of crisis. It also puts limits on the power of the Government and public bodies. It helps to ensure accountability so that no one, including the Government, is above the law.

Find out more about the Human Rights Act here

The Human Rights Act contains 16 rights, including the right to life, the right to respect for family life, the right to liberty, and the right to be free from discrimination. These rights apply to everyone in the UK. Some can be restricted in limited specific circumstance, if a three-stage test is met, but none of these rights can be taken away.

Find out more about the different rights here.

The Human Rights Act works in three ways:

What is the Independent Human Rights Act Review?

The IHRAR was announced in December 2020, set up by the UK Ministry of Justice as an independent panel. The head of the Ministry at the time, Robert Buckland, said the panel would look at how the Human Rights Act works now, over twenty years after it was created.

The Panel put out a Call for Evidence based on the terms of reference (its scope) as set by the Ministry of Justice. The two key areas it was asked to look at were: 1) the relationship between domestic courts here in the UK and the European Court of Human Rights; and 2) the impact the Human Rights Act has had on the relationships between the Judiciary, the Government, and Parliament.  The consultation ended up asking narrow legal questions about the Human Rights Act in the courtrooms and the relationship with Parliament. At BIHR lots of people contacted us because they wanted to share evidence about 20 years of the Human Rights Act working, but this did not seem to fit with the narrow questions. We wanted to make sure that people, organisations and frontline staff in public services could share their evidence with the IHRAR. We had a large programme of work to support this, and worked with over 400 people in our submission to the IHRAR. In particular we wanted to make sure the panel heard directly from people who have relied on the Human Rights Act to help them challenge poor practices without going to court.

The IHRAR received over 150 responses, as well as running a number of roundtable meetings to hear directly from different groups of people. The full report is 580 pages and the executive summary is 28 pages, both available here. In its report, the IHRAR Panel highlighted that the effectiveness of the Human Rights Act cannot just be measured in the courtroom. They found that there needs to be more education on the Human Rights Act to increase public ownership of the Act and its concepts. This would help to create a culture of human rights, one of the main aims of the Human Rights Act. The report also recommended an increase in transparency in how the Human Rights Act works.

Indeed, the Review’s report itself acknowledges “The vast majority of submissions received by IHRAR spoke strongly in support of the HRA. They pointed to its impact in improving public administration for individuals, through developing a human rights culture. Thus, the HRA was not, or not just, to be viewed through the prism of a few high-profile cases or indeed with a focus on litigation at all." (Page 16, para 46).  

We are currently digesting the details of this report and will update in due course.

Importantly, at the same time as the IHRAR, Parliament’s Joint Committee on Human Rights had a parallel inquiry, taking evidence on a much wider set of questions to understand how the Human Rights Act has been working and whether it needs change. The JCHR published its report in June 2021 and said the “evidence we heard has led us to conclude that there is no case for changing the Human Rights Act.”

The panel wrote their report and submitted it to the Ministry of Justice, for the Government to publish it. The panel submitted their report earlier in the year. It was not published until the 14th December 2021. During this time the Justice Secretary (the Government Minister in charge of the Ministry of Justice) changed from Robert Buckland to Dominic Raab. Several days after he was appointed to this role, Mr Raab made a speech at the Conservative party conference on the 5 October 2021 stating he would, in his new role, “overhaul” the Human Rights Act.

What is the Government’s Consultation?

At the same time as publishing the IHRAR’s report, the Government also announced plans to ‘overhaul’ the Human Rights Act. The timing is challenging, because the IHRAR report was not available before the Government’s consultation proposals. This means the public and organisations were not able to see what the IHRAR recommended to the Government before the Government published its plans. We are analysing the full IHRAR report and the consultation now, but it is clear that the Government consultation goes much further than the IHRAR recommendations, and that the evidence to the IHRAR showed there was no case for any large changes.

The Government’s consultation suggests that the Human Rights Act should be replaced with a Bill of Rights. It is not asking people whether this is a good idea or not.

The Consultation looks at 5 key areas:

  1. Respecting our common law traditions and strengthening the role of the UK Supreme Court
  2. Restoring a sharper focus on protecting fundamental rights
  3. Preventing the incremental expansion of rights without democratic oversight
  4. Introducing responsibilities within the human rights framework
  5. Facilitating dialogue with Strasbourg, while guaranteeing Parliament and the devolved legislatures their proper roles.

The government is asking for views on these key areas.

1. Respecting our common law traditions and strengthening the role of the UK Supreme Court

The Supreme Court is the highest court within the UK. This means that it is the final court of appeal for cases in the UK. 

According to Section 2 of the Human Rights Act, all courts in the UK must ‘take into account’ any relevant cases decided by the European Court of Human Rights. This is because the European Convention on Human Rights is ‘a living instrument’. This means that although the Convention was created over seventy years ago, it is still relevant as it adapts to society today, dealing with situations that may have been completely unforeseeable in 1950. For example, many developments in relation to the rights of LGBTQ+ people would not have been possible if the Convention was not able to evolve with society.

 The government suggests that this duty should be changed and UK courts should instead just look at the text of the rights themselves and at decisions previously made in the UK. By doing this, the government believe they will be demonstrating that UK law takes priority. This could narrow the interpretation and application of the Human Rights Act. As the UK will still be within the European Convention system, people will still be able to take cases to the European Court of Human Rights for a decision there. This could mean more cases being taken to and decided by the European Court of Human Rights. Between 2016 and 2019, there were 21 cases from the UK heard by the European Court of Human Rights. In 2020, there were only four cases.

The Consultation also suggests that the Bill of Rights should contain a provision that highlights the importance of the right to freedom of expression. This right is already contained in the Human Rights Act, it is protected by Article 10 (it also has extra protection in Section 12 of the Act so that courts have to consider this right in any orders they make). It is a non-absolute right, which means it can be restricted in certain circumstances. Like most rights, the right to freedom of expression must be balanced against other rights. The government wants to set out guidelines on how this right should be balanced and that it should only be limited in exceptional circumstances. Currently, any non-absolute right can only be limited if the measure is lawful, legitimate and proportionate.

2. Restoring a sharper focus on protecting fundamental rights

The Consultation suggests introducing a permissions stage for bring human rights cases to court. This could mean that an individual would have to demonstrate that they have suffered “a significant disadvantage” in order for the case to be heard at court. The individual would be responsible for showing that they have suffered this disadvantage. This would reduce the number of human rights cases heard in our courts. It is important to know that already under the Human Rights Act, legal action can only be taken if the individual is the ‘victim’ of a human rights breach.

It is also suggested that human rights should only be used if there are no other claims that can be made. Currently a person may bring a case under private law, for example negligence, but they may also be able to use the Human Rights Act in their arguments. This is because other laws should be applied in a way which is consistent with the Human Rights Act.  This suggestion could also reduce the number of human rights cases heard in our courts which may increase the number of cases having to go to the European Court of Human Rights.

3. Preventing the incremental expansion of rights without democratic oversight

Under Section 3 of the Human Rights Act, any laws in the UK must be read in a way which is compatible with the European Convention on Human Rights. This can be done by courts when deciding cases; it is also an important tool for public officials to consider when making decisions so they can be rights-respecting in the first place and avoid being taken to court. The Consultation proposes that Section 3 should be replaced with a provision which sets out how legislation should be interpreted. This could mean that the power to interpret legislation could be restricted.

Currently, if a non-absolute right must be restricted, that restriction must be proportionate, or least restrictive. The Government suggests that this means that law makers cannot balance individual rights with the wider public interest. Instead, they want to place further weight on the view of Parliament . This may reduce the importance of proportionality.

The Consultation also suggests that the use of human rights law by foreign criminals who are going to be deported should be restricted. The Government proposes that rights such as the right to liberty, the right to a fair trial and the right to respect for private and family life should not be able to be used to prevent deportations. The Government have used an example from a decision in 2009 to justify this, however there was a significant change in the law in 2014 which means this situation should no longer occur. The Government also indicate that these restrictions should apply in cases of illegal migration.

It is important to note that currently the Human Rights Act does not prevent such deportations, as they are still taking place. In addition, changing any of the rights due to a concern in one area will likely impact those rights in other areas, e.g. the right to respect to private and family life has been very relevant during the pandemic to help people keep contact with loved ones in care homes.

4. Emphasising the role of responsibilities within the human rights framework

Human rights are universal. This means that they apply to everyone, regardless of their personal situation. This applies to all the rights in the Human Rights Act.

The Consultation suggests introducing the idea of responsibilities into the human rights framework. These responsibilities are on the individual. This suggestion could mean that an individual’s behaviour could be considered when deciding whether it was acceptable to limit someone’s rights. The Consultation also suggests that an individual’s behaviour should also be relevant when deciding on any remedies that they may be entitled to for a breach of their human rights. Behaviour from the past may also be used to reduce or remove any awards of compensation. This may mean that not everyone is entitled to the same rights.

It is important to note that human rights are about the rights of individual people, and the responsibilities of Government and public bodies to respect and protect these rights. Our Human Rights Act includes consideration of some behaviour where relevant, for example people convicted of a crime may have their liberty restricted with a prison sentence.

5. Facilitating consideration of and dialogue with Strasbourg, while guaranteeing Parliament its proper role

The Consultation suggests that Parliament should have a stronger role in responding to the European Court on Human Rights. They want this to ensure that Parliament has the final word if there is a ruling by the European Court of Human Rights finding that the UK has breached an applicant’s human rights.

Currently, Parliament is responsible for responding to negative judgements from the European Court of Human Rights. As was demonstrated with the discussion around prisoner voting, Parliament can decide whether they do or don’t change the law in response to a judgement. Over a decade after the issue was brought to the European Court of Human Rights, a small change was made to the rules around prisoner voting which meant a small number of prisoners would be able to vote. This brought the UK in line with the decisions by the European Court of Human Rights without a large change in the UK’s law.

What happens now?

The law has not changed and the proposals in the consultation paper are not final. The Government’s Code of Practice on Consultation says a consultation paper should not be put out if “everything is already settled” because the responses should influence the final policy.

In March 2022, the consultation will end. After this, the Government will publish a report summing up the responses. They will also have to do an impact assessment which checks how any changes would affect different groups of people.

If the Government does then want to change the Human Rights Act, it has to propose a bill containing the actual wording of the new law. This has to be voted on by both the House of Commons and the House of Lords before it becomes law. It will also be scrutinised by the Joint Committee on Human Rights as part of this process.

This means that it’s important that as many people as possible respond to the consultation so that their voices are heard before any decisions are made about their rights.

You can read BIHR's 5-point action plan here or by clicking on the box above. 

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Read our Director’s Response to the Government’s Human Rights Act Proposal

Read BIHR’s Response to the Government’s Human Rights Act Proposal: Issued after the IHRAR Report and Government Consultation were published

Read our blogs about Why Our Human Rights Act Matters: a selection of real life stories and examples on how people are benefitting from our Human Rights Act across the UK in policy and practice.

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