YLAL submission to the Government consultation on Human Rights Act reform

On 14th December 2021 the Ministry of Justice announced an open consultation, entitled: Human Rights Act Reform: A Modern Bill of Rights opens as follows:

‘The Government is committed to updating the Human Rights Act 1998. This consultation seeks views on the Government’s proposals to revise the Human Rights Act and replace it with a Bill of Rights, in order to restore a proper balance between the rights of individuals, personal responsibility and the wider public interest.’

YLAL remains fundamentally opposed to the repeal of the Human Rights Act (HRA). We believe that the Human Rights Act as it currently exists is a vital tool for protecting our clients who are often the most vulnerable in society. 

Many of our clients rely on the HRA to access justice and enforce their rights. To inform our response to the Consultation, YLAL hosted a virtual roundtable on 16 February 2022 featuring a range of junior human rights practitioners and policy professionals. Our panellists were: Eilidh Turnbull, JustRight Scotland; Gabriel Tan, Wilson LLP; Jun Pang, Liberty; Marte Lund, Birnberg Pierce; and Robbie Stern, Matrix Chambers. Whilst the discussion at this event has informed our response, and the response may refer to their contributions, this submission is from YLAL and not attributable to any of the individual panellists or any organisation of which they are a member. 

YLAL’s position is that the HRA generally strikes a fair balance between the rights of the individual and duties to the State. YLAL also believes that it strikes a fair balance between The European Convention on Human Rights (ECHR), European Court of Human Rights (ECtHR) jurisprudence and domestic law and courts. In our view, there is no evidence to suggest that the changes envisaged within this consultation are either necessary or desirable. As such, YLAL’s position is that updating or replacing the HRA should not be a priority for the Government. Instead, the Government should focus resources on addressing the crisis in the justice system which has arisen from sustained underfunding by successive Governments.

This Consultation was published on the same day as the Independent Human Rights Act Review (IHRAR) report. In our IHRAR submission, we had concluded that there was no case for reforming the HRA in the ways suggested by the terms of reference or the questions in the call for evidence of the IHRAR. We noted that, in our view, domestic courts have been too deferential to the executive and the legislature and the UK needs to provide increased resources to the ECtHR to improve its efficacy and to truly ‘bring rights home’ in the UK.

The IHRAR made a number of limited recommendations for changes to how the HRA operates. Conversely it rejected a much larger number of proposals for change. It also strongly recommended that:

‘…serious consideration is given by Government to developing an effective programme of civic and constitutional education in schools, universities and adult education. Such a programme should, particularly, focus on questions about human rights, the balance to be struck between such rights, and individual responsibilities.’

YLAL considers it notable that this was the only recommendation which the IHRAR recommended strongly within its report.

Despite this, the current consultation goes significantly further than the IHRAR in terms of its proposals for changes to the HRA and sets out the Government intend to replace the HRA. The consultation also makes no reference to developing a programme of civic education as recommended by the IHRAR. The executive summary to the consultation states at paragraph 12: 

After we have received and considered the responses, we will in due course put forward legislative proposals to Parliament to revise and replace the Human Rights Act with a Bill of Rights.

YLAL is therefore concerned that the current proposals are being made in the absence of proper consideration of what has been recommended both by the IHRAR, by those who submitted responses to the same and any responses submitted in response to this consultation. 

YLAL's full submission to the review can be found below.