Reform of the Human Rights Act 1998

In December 2021, the Government published a consultation on its proposals to replace the Human Rights Act with a Bill of Rights. The consultation will run for three months, closing on 8 March 2022. It follows the publication of the Independent Human Rights Act Review (IHRAR) findings, which were submitted to the Government earlier in the autumn.

The proposals fulfil a Conservative manifesto commitment (4.7 MB, PDF) to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”.

What is the Human Rights Act?

The Human Rights Act 1998 (HRA) effectively incorporated the European Convention on Human Rights (ECHR) into UK law. The UK has been signatory to the ECHR since 1953.

The HRA enables people to bring claims relating to breaches of their human rights in the UK courts, and requires public bodies to act compatibly with human rights.

The rights in the ECHR include the right to life; to be free from torture; to liberty; privacy; and to freedom of speech and assembly.

Why is it under review?

The independent review mainly focused on the operation of the HRA and not the substantive Convention rights or the question of whether the UK should remain signatory to the Convention.

It followed several reviews into the HRA carried out by previous governments, none of which led to detailed proposals for reform. Underlying these reviews is a concern that the HRA may have drawn UK courts into ruling on issues better suited to political resolution. There are also concerns the Act undermines parliamentary sovereignty by requiring the courts to interpret UK legislation compatibly with Convention rights where possible.

Previous reviews have met with hostility from legal experts and human rights campaigners, who have argued that the rationale put forward for reform is not well founded in evidence. They state that amending or repealing the HRA would undermine the protection of human rights in the UK.

Government proposals for a Bill of Rights

Since his appointment as Justice Secretary and Lord Chancellor, Dominic Raab has indicated that HRA reform is a priority for his department. As a Minister and a backbench MP he has been involved in the debate about reform of the HRA for many years.

The Government’s consultation sets out proposals to replace the HRA with a Bill of Rights, (1,377 KB, PDF) which would retain the aspects of the HRA which the Government believes work well, while addressing concerns about the separation of powers between the courts and Parliament; the authority of the UK courts; and the balance between rights and responsibilities. It would also seek to address what the Government perceives to be a longstanding difficulty deporting foreign national offenders. It would give greater weight to “quintessentially UK rights” such as freedom of speech and trial by jury and restrict access to the courts for “unmeritorious” claims. The proposals would not involve withdrawing from the ECHR, and the Government has said it’s committed to remaining in the Convention.

The consultation states it is informed by IHRAR’s findings. However, it does not set out a detailed response to all the review’s findings, nor does it seek views on all of its recommendations.

Overall, the Government’s proposals are significantly more wide-ranging than those made by IHRAR, which concluded in several instances that problems with the HRA were more to do with perception than reality and recommended a focus on human rights education.

Reaction to the review and consultation

IHRAR’s focus on technical issues rather than substantive rights, was welcomed by critics of previous reform proposals. As the Government’s commitment to remain part of the ECHR has been.

However, it has also been noted that the review assumed there is a problem with the HRA, and did not offer scope for examining the positive impact it has had.

Parliament’s Joint Committee on Human Rights (JCHR) conducted its own inquiry into the HRA, prompted by the Government’s announcement of IHRAR. The JCHR took evidence from legal experts, public authorities, academics, and former ministers and senior judges. The Committee’s response to IHRAR, concluded that the HRA had had an “enormously positive” impact on the protection of human rights in the UK, and that no case for reform had been established. Its final report recommended that the Government should not put the UK’s constitutional settlement and the enforcement of rights at risk by amending the HRA.

The Opposition responded to the announcement of the Government’s consultation by suggesting that it was the wrong priority at a time when the criminal justice system is in crisis, and that many of the proposals are unnecessary.

Legal experts and campaigners are concerned about how the proposals could affect access to justice and the enforcement of human rights.

Next steps

The consultation will run until 8 March 2022. The Government has said it intends to introduce legislation to implement the resulting proposals in this Parliament.