Insights from the former judge of the Court of Appeal of England and Wales’ speech at our annual judicial review conference, on three essential principles that proposals to reform the Human Rights Act must adhere to, as reported by Research Assistant Saba Shakil

In his keynote speech at PLP’s Judicial Review Trends and Forecasts conference, Sir Peter Gross reflected on his experience as the Chair of Independent Human Rights Act Review (IHRAR) and highlighted the Panel’s key findings.

Underpinning his recollections were some valuable lessons on what constitutes effective reform. The current Government may have shelved the Bill of Rights Bill, but its predecessor’s proposals for reform have not been taken off the table. Whether or however HRA reform proceeds, here are three key principles from Sir Peter’s keynote that anyone working on reform of Human Rights legislation should keep front of mind.

1. Evidence-based reform

The HRA plays an integral role in balancing democracy with law, providing a crucial avenue for upholding rights and promoting the rule of law. The guiding factor for reform of such an important legal structure should be evidence and not rhetoric. Proposals for change should seek to improve proven, as opposed to perceived, weak spots in the operation of the law. In identifying potential issues, weight should be given to statistical evidence as well as the breadth of experience of stakeholders in this field.

2. Certainty in the law

Reform proposals should seek to avoid producing significant uncertainty in the law. First and foremost, uprooting settled case law and legal principles without sufficient cause undermines the rule of law by hindering the ability of individuals to vindicate their rights. Legal uncertainty also jeopardises the efficient functioning of both the courts and public authorities by submerging them in litigation. A high benchmark of justification should be required for interference with the organic and incremental development of the law.

3. Protecting the UK’s international standing

Certainty in human rights law has external benefits for the UK. Firstly, stability in the law strengthens the UK as a global legal services market. Proposals to reform the HRA should take account of, as Sir Peter emphasised, the role played by the HRA in recommending English law for dispute resolution.

Secondly, reform proposals should consider the role that the HRA, in representing a stable relationship with the ECHR system, plays in strengthening the UK’s position as a negotiator of new trade agreements. This is particularly important in the post-Brexit climate as the UK seeks to re-establish economic relations with major trading partners.

It is difficult to predict whether HRA reform remains on the agenda and if so, what form it will take. Although the debate around reform is politically charged, the harms of poor reforms will be universally felt. Sir Peter Gross has offered a useful reminder that good reform is conducted as a principled exercise that follows the evidence, promotes legal certainty, and safeguards our reputation.

About the Independent Human Rights Act Review

Established in December 2020, the Independent Human Rights Act Review (IHRAR) Panel was instructed to review the operation of the Human Rights Act 1998 (HRA) with regard to two themes: “the relationship between domestic courts and the European Court of Human Rights (ECtHR)” and “the impact of the HRA on the relationship between the judiciary, the executive and the legislature”. The Panel published its findings in December 2021 and six months later, the Bill of Rights Bill (BoRB) was laid. Amongst other things and most notably, the Bill sought to repeal the interpretive obligation under Section 3 HRA.

Further reading