Reform Proposals And The Future Of The HRA

Question 1

Aim of HRA

Answer 1

Labour gov - ppl enforce their convention rights against the state in British courts rather than incur delays and expense which are involved in taking a case to European Hr commission and court - may deter ppl from pursuing their rights

Question 2

Why are reforms being considered

Answer 2

Concern about freedom of religion and freedom of expression, concern against role of judges - whether they are going to too fair and beyond what Strasbourg has and whether courts are going gaisnt parliament

Successive gov and most PMs express concerns on specific cases/issues e.g. deportation of foreign criminals post sentence

S and others V SSHD - 9 afghan men who hijacked aircraft to escape taliban and landed in UK and argued right to remain in UK, convicted of hijacking and sentenced to 5 years imprisonment, convictions quashed due to misdirection to jury and then adjucators ruled that returning ment o Afghanistan would breach their rights - ruled unlwaful under immigration act to restrict men’s live to Uk - should be able to live and work in UK - Blair = ‘an abuse of common sense’ and David Cameron vowed to change the law

Question 3

Prisoner voting

Answer 3

Hirst (no2) v UK - Uk gov against giving vote, contrary argument that prisoners should be allowed to vote who has power over them - compromise - UK gov - prisoners who weren’t convicted (held on remand) and serving sentence in community would be excluded from ban - in Scotland if sentence less than 12 months allowed to vote

Question 4

Cases with different outcomes on concern of whether judges are making law

Answer 4

R(Elon-cane) v SSHD - applicant seeking gender neutral passport - rights under article 8 European convention meant entitled for gender to be ‘X’ on passport - lord reed- not down to judges - too far

Leigh and ORS v the commissioner of police of the metropolis and Secretary of State for health and social care - girl murdered by police officer and call for vigil in London headed by organisation ‘reclaim these streets’ told cannot have vigil as heightened covid19 restrictions

Question 5

Government moves to reform/repeal HRA

Answer 5

Labour gov opined that the HRA (how judges apply it) was impacting gov policies in particular counter terrorism
2010 CP made manifesto commitment to replace HRA with a. Bill of rights but couldn’t deliver as formed coalition with LD
CP promised to repeal HRA following 2015 election (David Cameron who then resigned a year later post EU ref)
2016 CP repeated intention to repeal HRA and replace with bill of rights
2019 CP manifesto pledge to ‘update the HRA and administrative law to ensure there is a proper balance between the rights of individuals, our vital national security and effective government.’

Commission on bill of rights 2011-12 - commission tasks include to investigate creation of UK bill of rights and incorporate and build on out obligations under European convention on HR - ensuring these rights enshrine in UK law and protect and extend liberties and examine operation and implementation of these obligations and consider wats to promote better understanding

Question 6

What was the independent end HR act review 2021

Answer 6

Years long process of evidence gathering and independent review - 413 page review and separate executive summary of 45 pages

Focus on how HRA was working in practice and whether any changes were needed

Outcome published after gov announced their planned consultation

Recommendation included - human rights education, amend s2HRA to prioritise domestic law and amend s3HRA to clarify order of priority of interpretation

Established in December 2020 - change the relationship between relationship between domestic courts and European court of human rights and impact of the HRA in the relationship between the judiciary, executive and legislature

Question 7

Joint committee on HR

Answer 7

Joint committee on HR - established with the HRA - regularly reports on the UK and its HR obligations - amassed a lot of expertise on HR and reports generally well regarded and can be useful for understanding HR implications

Reported evidence for IHRAR July 2021 - critical of changes and focused on advantages of HRA

Concerned that the proposals and consequences run counter to three principles of HR law - HR are universal, HR are fundamental and require special protection within domestic and international legal order and HR must be able to adapt and stand test of time as common law does and dont think case made for replacing HRA with British bill of rights

Question 8

2022 gov consultation

Answer 8

2022 government consultation - following the IHRAR - led to parliamentary debate - responded to committee - Dominic Arab HRA introduced in 1998 now need to take a fresh look at our HR framework

Question 9

Bill of rights 2022-23

Answer 9

BoR will replace HRA and restore common sense approach to HR in UK - protect ppls fundamentl rights while safeguarding broader public interest and respecting the will of elected representatives in parliament - continue give effect to same rights and freedoms and convention rights drawn from European convention on HR

Joint committee on HR jan 2023 - scrutiny of draft legislation - bill of rights should be for everyone, bringing right homes, rockier road to remedies, disregard fir existing international legal obligations, role of parliament, no case for this bill - bill of rights lacks support and creates legal uncertainty and damage international relationship

Clause 3 bill - SC = ultimate judicial authority on Qs arising under domestic law in connection to convention rights

Rwanda - gov stopping small boats - CP aimed stopping small boats crossing channel with ppl seeking asylum and irregular immigrants - illegal migration act 2023 - R (AAA(Syria) and others) v SSHD