Human Rights Act reforms would weaken human rights protections in the UK

The Joint Committee on Human Rights has warned that Government proposals to reform the Human Rights Act risk weakening existing human rights protections.

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• Find all publications related to this inquiry, including oral and written evidence

In a report, the Committee criticises proposals to replace these protections with a ‘British’ Bill of Rights, finding that they would instead cause confusion and result in more cases being sent to the European Court of Human Rights. It also finds that attempts to strengthen freedom of speech could undermine the enforcement of other rights.

The Government launched a consultation on proposals to revise the Human Rights Act in December. Its stated aim is to “restore a proper balance between the rights of individuals, personal responsibility and the wider public interest”. While the Government has restated its commitment to the European Convention on Human Rights, which underpins the Human Rights Act, the proposals include replacing the Human Rights Act with a new Bill of Rights, giving higher priority to freedom of speech and introducing a new right to trial by jury.

The Joint Committee on Human Rights finds that the Human Rights Act has been successful in strengthening the ability of people in the UK to enforce their rights, and this would only be weakened by the Government’s proposals.

Measures that the Government says would strengthen rights are likely to have the opposite effect on other rights. Giving greater importance to freedom of expression would likely damage rights including the right to privacy and the right to a fair trial.

Placing greater restrictions on who can bring a human rights claim or reducing the damages owed to a claimant because of a perception of them being undeserving would contravene the fundamental principle that human rights are universal.

Proposals designed to distance the UK courts from decisions made in the European Court of Human Rights would create legal uncertainty, requiring lengthy and costly litigation to resolve and more cases being taken to Strasbourg.

Fears that UK courts are taking decisions that should be made by Parliament are unfounded, as is the perceived need for the right to a trial by jury to be included in a Bill of Rights.

Chair's comment

Publishing the report, Chair of the Joint Committee on Human Rights, Rt Hon Harriet Harman MP said:

“The Government’s case that human rights legislation is in serious need of reform is not proven. There is nothing in their consultation that would serve to strengthen the protections we currently have and much that would weaken them.

“In many cases what is described as the strengthening of rights is simply tweaking what is already protected, while at the same time making it harder for people to actually enforce their rights.

“At present, freedom of expression is protected and given proper balance with other rights that are also important. The courts respect the primacy of Parliament when making their rulings so there is no need for change on that. Most human rights cases are heard in UK courts by the UK judiciary rather than Strasbourg judges in the European Court of Human Rights.

“The Government is purporting to solve non-existent problems and offering solutions that would only cause confusion and detriment to those who need their rights protecting.

“If the Government wanted to strengthen human rights they would improve how they are respected in general, improve education so that everyone knows their rights and improve access to the courts for those needing to enforce them.  Improving awareness and understanding of human rights and access to the courts would have a beneficial impact unlike the government’s current proposals.”

Key conclusions and recommendations:

UK Courts and the European Court of Human Rights

The report finds that the Government’s plans to distance the existing relationship between UK courts and the European Court of Human Rights would fail to improve how human rights are enforced, and are likely to make litigation more costly and time-consuming.

Since the Human Rights Act became law in 1998, the number of cases brought against the UK in Strasbourg has fallen and UK judges in UK courts now oversee the majority of cases. This allows cases to be decided with greater respect to the broader legal and societal context of the UK, while also producing judgements that influence case law in the European Court of Human Rights.

Under proposals to alter section 2 of the Human Rights Act, the current obligation for UK courts to take into account judgements from Strasbourg would be weakened. This would create legal uncertainty, with UK courts more likely to diverge from established interpretations of Convention rights, requiring lengthy and costly litigation to resolve. It would also increase the likelihood of cases being taken to the European Court of Human Rights and presided over by judges from other countries, undoing the work of the HRA in “bringing rights home”.

Parliament and the courts

The Government is concerned that the Human Rights Act has led to the courts making decisions that should be made by Parliament. They propose remedying this by weakening the duty under section 3 of the Human Rights Act, which currently requires courts to read legislation compatibility with the European Convention on Human Rights as far as it is possible to do so. They also propose giving Parliament a greater role in scrutinising legislation to ensure it is compliant with human rights when it becomes law, providing good quality analysis when a bill is introduced and allowing more time for effective scrutiny.

The Committee rejects the premise that section 3 of the Human Rights Act is being misused by UK courts and needs to be reformed. Recent case law shows that courts are applying this correctly, balancing respect for Parliamentary sovereignty with effective protection for human rights.

However, the Committee would welcome a more structured system to improve collaboration between Government, Parliament and the Joint Committee on Human Rights when legislation is found to be incompatible with human rights. In such cases, the Committee proposes that the Government should set out a timetable and method for resolving human rights violations, allowing greater accountability and ensuring more timely action to address them.

Litigation

The consultation includes proposals to deal with what the Government sees as frivolous human rights claims. It proposes establishing a new permission stage, where a claimant would have to prove they had suffered a ‘significant disadvantage’ before they can pursue a claim.

The Committee finds that the case for such a measure is weak given courts are already able to reject claims if they lack merit.

Attempting to alter the balance of decisions on damages by focusing on factors likely to weigh in favour of the state would also risk interfering with the courts discretion.

There are deep concerns about plans to reduce the amount of damages a claimant is entitled to based on their past conduct. Human rights are universal, and the Committee finds that any attempt to categorise claimants as undeserving of effective protections has no place in law.

Freedom of Expression

In its consultation, the Government has indicated its intention to provide greater protection for freedom of expression in the proposed Bill of Rights. At present, the right to freedom of expression is protected under the Human Rights Act and courts are required to consider how they balance this right with other rights when they come into conflict. The Committee finds that giving freedom of expression undue precedence over other rights would undermine the principle that all rights are equal and fundamental. In practical terms it would risk limiting the right of people to enforce their right to private and family life or the right to a fair trial.

Right to a jury trial

The consultation also proposes recognising a right to jury trial in the new Bill of Rights. It was confirmed to the Committee that the substantive right to a jury trial, which is currently limited to serious offences in England and Wales, would not be affected. The proposal would therefore appear to be largely symbolic. It would also be hard to reconcile with the Bill of Rights reflecting values held across the UK, as the right to jury trial does not exist in Scottish procedure.