Published: 16th December 2021 The newly published independent review and Government consultation on the Human Rights Act raise concerns over access to justice and state accountability. Here, we set out why. The clock is now ticking on the Government’s human rights consultation, published this week alongside the Independent Review of the Human Rights Act (IRHRA). The proposals are constitutionally significant and the three-month consultation period, which closes on 8 March, means there is much ground to cover in a short space of time. PLP’s main focus is on the following five proposals that would affect how people can enforce their legal rights and hold public authorities to account. 1. Reform section 2 of the HRA (the duty to take into account Strasbourg case law) The Government has proposed a number of amendments to the Human Rights Act 1998 (HRA) to reduce the expectation that UK courts follow the case law of the European Court of Human Rights in Strasbourg. If this proposal results in domestic courts interpreting rights more restrictively, this may result in more individuals going to Strasbourg to seek redress. The cost and time required to do so is far beyond the means of the vast majority of people. This would create an access to justice problem and defeat the HRA’s original purpose of bringing rights home. The IRHRA report recognised this problem (IRHRA 146, Chapter 2) and rejected any option that involved the repeal of section 2 or replacing “must” with “may”. Moreover, this may not be quite the issue the Government suggests. The Supreme Court has already developed an approach to interpreting rights in the European Convention on Human Rights that means UK statute and common law are the first port of call before Strasbourg case law is taken into account (IRHRA para 146, Chapter 2). The IRHRA report also makes clear that over the 20 years since the HRA coming into force, we have developed a system where domestic courts are willing to differ from Strasbourg when there is good reason to do so. The courts do not see themselves as absolutely bound to follow Strasbourg. The Government consultation accepts this (para 114) when it concedes that the courts have retreated from the ‘maximalist’ approach. When considered alongside the risk of restricting access to justice, this means the need for reform is less clear. This proposal also poses rule of law concerns. If the UK is not upholding Convention rights to the standard that Strasbourg has deemed necessary, the UK will be at risk of breaching its international obligations. 2. Introducing a ‘permission stage’ The Government has proposed a new permission stage before a human rights claim can be heard in court. This would shift responsibility to the claimant to demonstrate their claim merits the court’s attention and resources and that they have suffered a significant disadvantage. The consultation does not develop specific proposals on this point. It is far from clear how this would work in practice: which types of claims would this engage, and how? The immediate concern is that a permission stage would put further obstacles between potentially vulnerable individuals and their ability to enforce their legal rights. The suggestion (para 222) that claimants should suffer ‘significant disadvantage’ may ultimately be redundant as section 7 of the HRA already includes the ‘victim test’ for standing provided for by Article 34 of the Convention. 3. Reforming section 3 HRA (interpreting legislation to be compatible with the Convention) The Government’s view is that section 3 has led to a move “too far towards judicial amendment of legislation which can contradict, or be otherwise incompatible with, the express will of Parliament.” (para 233) Among the options for reform include repealing Section 3. This would make it more difficult for courts to read legislation in conformity with Convention rights, because the section 3 duty goes further than either the presumption that Parliament will not legislate in breach of international law obligations, or the Simms legality principle, which ensures that fundamental rights cannot be overridden by general or ambiguous words. Repeal of section 3 could result in more people taking cases to Strasbourg. Again, this would make it harder for individuals to access justice and seek redress. 4. Reforming section 4 HRA (declarations of incompatibility of secondary legislation) The Government consultation document alludes to concerns around the courts’ powers to quash secondary legislation as a remedy in human rights challenges (paras 249-252). One of the proposals is to expand the use of suspended and prospective only quashing orders (Clause 1 of the Judicial Review and Courts Bill makes provision for this – you can read PLP’s briefing on why this will undermine Government accountability). It is worth noting that: The majority of the IRHRA panel rejected any option which would prevent statutory instruments from being quashed (para 64, Chapter 7)As PLP’s research cited in the IRHRA report has shown, only 14 statutory instruments have been struck down on HRA grounds since 2014.Secondary legislation cannot in any meaningful way be described as giving effect to the will of Parliament; these laws cannot be amended or voted down in practice. 5. Public interest concerns and foreign national offenders The government wants to “provide more guidance to the courts on how to balance qualified and limited rights”, to ensure that the public interests and the rights of others are given “due consideration” (paras 289-291). The consultation recognises the reforms in the Immigration Act 2014, attaching more weight to the public interest when considering an article 8 claim from a foreign national offender, but maintains that more “direct reform” is needed (para 293). A consistent theme running through the consultation in relation to these recommendations isthe notion that human rights depend on good conduct, described also as “emphasising the role of responsibilities”. Considerations here include: Human rights are by design universal in their application, and while a qualified right can be permissibly breached when necessary and proportionate, any option that purports to completely strip certain groups of their ability to rely on their Convention rights would be manifestly unjust and highly unlikely to survive scrutiny from Strasbourg.Through orthodox proportionality analysis, courts are already performing these balancing assessments, comparing the public interest and any misconduct of the claimant with the claimant’s Convention rights.Government proposals around proportionality and qualified rights suggest that the courts “must give great weight to Parliament’s view of what is necessary in a democratic society”(10, Appendix 2). How the courts will ascertain Parliament’s ‘view’ is unclear. Over the coming months will endeavour to support organisations and groups to interpret and respond to these proposals. If you would like to get in touch with us, please email Anna Sereni.