The government’s Human Rights Act consultation: omissions and opportunities

By: Tatiana Kazim, Mia Leslie and Lee Marsons

This is the second of a two-part set of blogs which consider the government’s Human Rights Act (HRA) consultation, which closes on 8 March 2022.

The first blog, available here, examined how the government’s consultation differs from the original recommendations made by the Independent Human Rights Act Review (IHRAR), how the consultation fits into the government’s broader constitutional reform programme and the evidence base of the consultation.

This second blog extends the discussion by examining two issues: important matters which the consultation does not consider, such as how the HRA is used outside the senior courts, and potential opportunities arising from the consultation, such as the opportunity to advance a more informed public debate about human rights.

What the consultation does not consider

Large as it is, the consultation does not consider some important matters which should at least be noted if the HRA is to be reformed in a major way.

Of particular importance is that the consultation focuses entirely on the legal use of the HRA in the senior courts and its doctrinal consequences, and not on the broader use of the HRA outside the senior judiciary. It does not consider, for example, the internal use of the HRA by local authorities when making care needs assessments for the elderly, the ways that ombuds use the HRA when making findings about the maladministration of public bodies and when recommending remedies for victims, or how the police might use the HRA to improve their decisions prior to interfering with protected rights.

This is important because public law is not a hierarchy with the senior courts at the top. It is a web of legal, political and administrative redress mechanisms with overlaps and gaps, each of which may use the HRA in different ways to achieve different things.

An important example is the ‘ombudsprudence’ being developed by the Local Government and Social Care Ombudsman (LGSCO), which in several investigations has found against a local authority on the basis that the council had insufficient regard for Article 8 of the ECHR in its decision-making process. One investigation related to Article 8 and a five-month delay in a council’s assessment of a dementia patient’s care needs while he was placed in a care home, and another related to a council decision to place an elderly woman in a care home against her and her husband’s wishes. The Equality and Human Rights Commission has also produced important guidance for ombuds on how to promote and protect human rights in their decisions and investigations.

Moreover, the consultation does not consider the degree to which government departments (like the Home Office), arms-length public bodies (like Ofcom) and other public servants (like the police) have internalised the HRA into their decision-making processes and behaviours and, if they have, to what extent this has improved the protection of rights and avoided litigation. Ultimately, the consultation may be focusing on the wrong problem. The issue may be less about judicial overreach and doctrine, and more about ‘legal consciousness‘ and ‘legal conscientiousness‘ – the capacity of decision-makers to know accurately what the HRA requires and to competently act on it.

In addition, the consultation asks no question in relation to the HRA’s application to private bodies contracting with public bodies. Section 6 makes it unlawful for a ‘public authority’ or ‘any person certain of whose functions are functions of a public nature’ to infringe human rights. There are contentious decisions interpreting this provision, which have excluded from its scope bodies such as commercial contractors who run care homes on behalf of local authorities. This gap in protection is not assessed in the consultation.

Finally, the consultation does not consider the role of common law rights and their connection with the HRA. Some common law rights have been developed directly in consequence of the HRA. The classic is Article 8 protections vis-a-vis the news media in cases such as Campbell v MGN Limited, which created a private cause of action for infringements of privacy committed by private individuals, such as journalists. The consultation does not consider the potential implications of HRA reform for common law protections.

What are the opportunities arising from the consultation?

For all its limitations, the consultation offers opportunities.

The consultation takes up IHRAR’s recommendation to improve transparency by creating a database of section 3 decisions. The first step in a serious assessment of the practical consequences of a legal provision must be the collection of and access to adequate data on how the provision is actually working. This will enable myths to be dispelled and overreaches to be resolved as they arise.

Another positive suggestion is enhancing the role of Parliament’s Joint Committee on Human Rights (JCHR), particularly in relation to supervising section 3 decisions. If anything, there is a case for a more active role for the JCHR beyond section 3, conducting periodic inquiries and holding evidence sessions with claimants, public bodies and others to supervise the implementation of the HRA and how effective it is in promoting the protection of rights. The effective protection of rights in a liberal democracy requires more than judges. Equally important is an informed and engaged legislature.

While the government has not taken up IHRAR’s recommendation to develop a programme of civic and constitutional education with a focus on human rights (at paragraph 52 of the report), the very fact that the consultation is happening represents an opportunity: to raise public awareness about the HRA and the protection it provides, and to challenge common misconceptions about its operation. As the President of the Law Society has noted, ‘more sensationalist cases skew public opinion and detract from the wider benefits of the HRA’. Now, there is a chance to redress the balance and show that Convention rights are for everyone; not just for those who are ‘unpopular or vilified in the media’ (see quotes from the Law Society and Equalities groups roundtables, also at paragraph 52 of the report).

Therefore, while there are concerns with the consultation, not least its significant departure from IHRAR, the broader constitutional programme into which it fits, its sub-optimal approach to data, and the omission of important topics, the consultation nevertheless provides a useful opportunity for civil society, academics and practitioners to highlight the value of the HRA. Equally, this is a chance to highlight where the HRA has been found wanting and where additional rights-protective reforms may be needed.

Tatiana Kazim is the Public Law Project’s Research Fellow in Public Law and Technology. She holds a Bachelor of Civil Law and an undergraduate law degree from the University of Oxford, and a politics and philosophy degree from the LSE.

Mia Leslie is a Research Assistant at the Public Law Project. She is a University of Leeds graduate, holding an undergraduate degree in Law (LLB) and a postgraduate degree in International Law (LLM).

Lee Marsons is an Assistant Lecturer at the University of Essex, Research Fellow at the Public Law Project and Editor of the UK Administrative Justice Institute. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.