In December 2021, when he unveiled his plans to scrap our Human Rights Act, the Justice Secretary quoted John Stuart Mill in saying, “he who knows only his side of the case knows little of that.” 

And you know what? We agree with him. In fact, this may be the one point the Government has made so far that it has been able to back up with evidence – time and time again. From ignoring the views of the panel it commissioned to dismissing the public opinions that it asked for, the Government has refused to pay any attention to the other side of the case and has instead put forward confused, unsupported, and often incoherent arguments that conclusively show it doesn’t know its own side, either.   

The IHRAR 

Our recent briefing, “Human Rights Act reform: nothing about us, without us” explains in detail our concerns with the way the Government has approached its plans to scrap our Human Rights Act. It starts with the Independent Human Rights Act Review (IHRAR), set up in December 2020. 

Click here to read our process briefing.

The Government set up the IHRAR to see how our Human Rights Act is working and whether it needs to change. In October 2021, the IHRAR Panel wrote a report on their findings and sent it to the Government. 

The report was 580 pages and found, “the vast majority of submissions received by IHRAR spoke strongly in support of the HRA”.  
 
However, this report was not made public until 14 December 2021 – the same day that the Government published its Consultation Paper setting out plans to replace our Human Rights Act with its own Bill.  

Click here to read our IHRAR and Consultation Paper explainer.

This Consultation Paper asked 29 questions, was 123-pages long and written in confusing and technical language. The consultation was due to end on 08 March 2022. This gave the public 12 weeks to read, process and respond to both the 508-page IHRAR report and the 123-page Consultation Paper. The Ministry of Justice might fancy itself a speed-reading champion (more on that later…), but it was quite a feat for the rest of us. 

And the Government didn’t make it any easier for us by combining the two documents – because, in the words of Sir Peter Gross who chaired the IHRAR, “the [Consultation] does not with respect respond to [the IHRAR report], is not grounded in anything approximating the exercise [the Panel] conducted but nevertheless asserts that the HRA is not working well.” 

It also seemed to ignore the report published in June 2021 by Parliament’s Joint Committee on Human Rights (despite the Justice Secretary’s fierce insistence that changes to human rights law should be subject to “proper democratic oversight by our elected Parliament”). This report, much like the IHRAR, found “the evidence we heard has led us to conclude that there is no case for changing the Human Rights Act.”. 

The Consultation 

Under even tighter time constraints was anyone using accessible versions to respond to the consultation. They were granted just six weeks to respond – and even that wasn’t guaranteed.  

Click here to read our news story about accessible versions.

Initially, the Government did not release any accessible or Easy Read versions along with the original Consultation Paper (an “Easy Read” document is one which presents text in an understandable way and was created to help people with learning disabilities access information. The Government’s definition of Easy Read includes that “easy read uses pictures to support the meaning of text”. ) 

Then, on 24 February 2022, the Government released a “word-only Easy Read version” of the Consultation Paper. Not only did this include no images and miss out a lot of important context, evidence and information, it was released just 12 days before the deadline.  

One day before the deadline (and following a letter from solicitors Rook Irwin Sweeney, hired by user-led learning disability campaign group Pembrokeshire People First), the Ministry of Justice eventually released a new Easy Read version with images and, shortly after, an audio version. People who needed to use these versions could apply for a six-week extension to respond. This was just half the amount of time that people using the original version had to respond, and the extension was not automatic; not all applications for it were granted. 

The Government put the delays down to issues with “suppliers” – but some respondents had other theories. A respondent to one of our Easy Read surveys said, “it’s obvious the Government doesn’t want us to be heard, hence why they have made it so difficult! 

The Consultation Responses 

Despite the difficulties, an impressive 12,438 people responded to the consultation by 08 March 2022 (and that’s not even including people who were granted an extension!).  

Click here to read our consultation response.

We were looking forward to hearing what all these people had to say about an issue that would so fundamentally impact every one of us – so we wrote to the Ministry of Justice asking when the responses would be published.  

Except it turns out, they won’t. The Government wrote back to tell us it does “not intend to publish, in full, all the responses [but] intends to publish a formal consultation response setting out, in general terms, the nature of the responses received to its consultation, and the actions the Government has taken in response.” 

We were disappointed because we thought we’d have to wait a long time for this report. After all, 12,438 responses is a lot to read – on top of any responses received after the extension date. Plus, the Government would have to properly consider each one and plan its next steps accordingly. As the Government itself says, “there is no point in consulting when everything is already settled” – so they couldn’t have made any decisions yet. 

So, imagine our shock when just 42 working days after the consultation ended, during the Queen’s Speech, the Government announced its plans to introduce a new Bill! We couldn’t quite believe it, so we decided to crunch the numbers, and it turns out the Ministry of Justice must be full of speed-reading champs! Watch the video below to see how it all adds up: 

It was still a bit of a wait until we saw the promised consultation response report though. In fact, it was released at the same time as the so-called Bill of Rights (aka the Rights Removal Bill). Once again, the Government didn’t do us any favours by combining the two documents – because nothing in the Bill seems to reflect the views expressed in the consultation responses. For example… 
 
Section 3 

The Government asked if it should remove the legal duty on courts and public bodies to interpret laws in a way that respects human rights, so far as possible. The overwhelming majority of respondents (79%) said no while 11% said they had no preference to any option presented. This isn’t that surprising, given the IHRAR also said there should be no significant changes to Section 3. Yet in the Rights Removal Bill, the Government decided to scrap the whole section, an option supported by just 4% of people. 

Positive Obligations 

The Government asked if people support the current obligations on public bodies to take proactive steps to protect people’s rights. 100% of people said yes, with many noting these obligations “provide protection for vulnerable people”. The Government decided to stop any new obligations being created and limit the applications of the ones that already exist. 

Awards for Damages 

The Government asked what factors should be considered when deciding what damages someone can be awarded for a breach of their human rights. We’re not sure why, because it didn’t present any evidence to suggest this was something anyone wanted, and it also didn’t ask the IHRAR to look at this issue. Nevertheless, people answered, and the majority (52.8%) confirmed they like the current system, where it’s looked at on a case-by-case basis. The Government instead decided to include statutory obligations (which 13% wanted), the impact on the public authority (which 12.8% wanted) and whether the public authority was trying to respect the “intention” of another law (which 9% wanted). 

Judicial Independence 

The Government asked whether judges deciding what factors to take into account in human rights claims is causing a problem. As far as we can tell from the Government’s statistics, not a single person said yes. The Government decided to set new rules dictating what factors judges are allowed to take into account.  

Adding a Permissions Stage 

The Government asked if they should add an extra barrier to people having their human rights case heard in court, by requiring them to show they experienced a “significant disadvantage”. The overwhelming majority (90%) said no. The Government decided to add it anyway. 

Pre-Legislative Scrutiny 

Reading the two documents side-by-side, you’d be forgiven for thinking the Government didn’t consider the consultation responses a significant factor to consider when drafting the Bill. But apparently, you’d be mistaken – because the Government was so confident in the usefulness of the consultation responses that it used them as justification not to submit the Bill for pre-legislative scrutiny. It decided this despite the fact four specialist Parliamentary committees (Justice, Human Rights, Constitution and Public Administration and Constitutional Affairs) sent a letter to the Secretary of State pointing out that Parliamentary scrutiny is an important part of the “balance of power” the Government says its Bill will restore. 

Click here to read a joint letter co-signed by BIHR and over 150 civil society organisations calling for pre-legislative scrutiny.

Presenting the Bill 

It’s not yet clear when the Parliamentary committees were first allowed to see the Bill. Hopefully, it wasn’t at the same time as the rest of us i.e. approximately three hours after the Justice Secretary presented the Bill in the House of Commons, (inaccurately) claiming that it was published online and admonishing his colleagues for not having read it. 

While those speed-reading skills we all had to develop earlier in the consultation process didn’t quite allow us to have read the Bill before it was up, we’re sure they’ll come in handy over the next couple of weeks; the Bill, its Impact Assessment, Human Rights Memorandum and the Government’s report on consultation responses were all made available at the same time. 

We’re busy analysing the Bill and its accompanying documents and will continue to publish resources and explainers as soon as we can. Keep an eye on our Rights Removal Bill hub for updates. But from what we’ve seen so far, there’s already a clear pattern: the Government ignored the views of the IHRAR, the needs of the people trying to respond to the consultation and the responses it did receive, while refusing to release the IHRAR’s report, the consultation responses or even the Bill itself to both Parliamentary scrutiny and the public ahead of its presentation. 

For somebody who thinks it’s so important to know the other side’s case, the Justice Secretary is making it awfully hard to make sense of his.