We launched the Andrew Lockley Public Law Essay Competition in 2021 to give aspiring public law and human rights lawyers a platform to kick-start their careers. The contest is named after our first head of Public Law team and we were delighted to run it again this year.
We’ve received some brilliant entries to the contest, and we’re proud to present this years’ winner: Josh Neaman.
Josh passed his postgraduate diploma in law (pGDL) at City, University of London earlier this year. He’s now completing his bar vocational studies (BVS), and hopes to practice as a barrister in the future.
He answered the question:
Following withdrawal of the Bill of Rights by Liz Truss' government, it's widely believed the future reform of the Human Rights Act 1998 is still on the agenda. Please set out the pros and cons of reform, drawing on key provisions that had been intended for the former draft Bill of Rights.
Our panel of public law experts including
Angela Jackman KC (Hon), Yogi Amin and Oliver Carter judged the entries, and enjoyed reading Josh’s essay.
“The extent of Josh’s evidenced research is impressive. In addition to commenting on key provisions of the withdrawn Bill of Rights, he also critically reviewed provisions of the Human Rights Act 1998 in an innovative manner. Josh also suggested alternative reforms.
“The essay is a very well written, thought-provoking read and is deserving of first place.”
Read Josh’s entry in full below.
Ever since 1998, the Conservative Party has consistently and vociferously advocated reforming the HRA. With the publication of the Bill of Rights Bill (“BoRB”) in June 2022, they appeared to have achieved their goal, only to see the Bill shelved three months later following intense criticism. However, HRA reform is not merely the “sole province of right-wing crankery,” and nor is the BoRB the only alternative available. This essay examines the respective merits of possible paths to reform.
One key area for potential reform is s.2 HRA, which obliges the courts to “take into account” the “relevant” ECtHR jurisprudence when reaching decisions. The government criticised this as creating “over-reliance” on Strasbourg instead of promoting “home-grown jurisprudence,” and accordingly the BoRB removed the s.2 obligation entirely. Instead, cl.3 reaffirmed the Supreme Court’s ultimate authority on rights issues.
Removing s.2 would not make Britain unusual in a European context. Neither France, Sweden nor Italy impose equivalent obligations to have regard to Strasbourg. The Italian Constitutional Court even held that ECtHR judgments that conflict with its own jurisprudence become “inapplicable.” All three nevertheless have well-functioning rights systems. Concluding that scrapping s.2 would be “unhelpful and counterproductive” would, at least in theory, be an exaggeration.
Nonetheless, cl.3 has two major flaws. First, it goes far further than our European counterparts by expressly forbidding expansive interpretation of Convention rights unless there is “no reasonable doubt” that the ECtHR would do the same. This unacceptably constrains the courts and sets up an impractical game of second-guessing Strasbourg.
Moreover, it is unnecessary. Ullah’s approach to s.2 effectively left the domestic courts bound by the ECtHR. If Strasbourg had spoken, the case was closed. This strict “mirror approach” was legitimately criticised as contrary to parliamentary intention and damaging to relations between the domestic courts and Strasbourg, but since Horncastle and Pinnock it has fallen out of favour. The courts will now ignore the ECtHR in numerous situations, extending even to cases where they simply think Strasbourg got it wrong. This leaves cl.3’s rationale dead in the water.
Instead, more modest changes would suffice. First, s.2 should be amended to explicitly state that domestic courts are not bound by Strasbourg. This would prevent any future re-emergence of the unduly narrow Ullah approach. Second, a clause should be added requiring the courts to consider domestic law before turning to Strasbourg, so further addressing the criticism that s.2 stifles autochthonous jurisprudence.
ss.3-4 HRA are equally controversial. s.3 is particularly criticised as “abandoning interpretation for judicial legislation,” thereby undermining the separation of powers. Similarly, Kavanagh emphasises that s.3 requires the courts to go beyond the “negative task” of identifying rights violations and instead actively to “displace” legislation, which Parliament must then take positive steps to undo. This creates a concomitant challenge to the rule of law by preventing citizens from regulating their behaviour as they cannot predict statutes’ effects. These are powerful criticisms that cannot be dismissed simply by saying s.3 itself represents the will of Parliament, and have led to calls to curtail s.3 or even, as the BoRB did, remove it altogether.
However, the theoretical force of the arguments above is blunted when set against how s.3 functions in practice. s.3 has only been used to interpret otherwise HRA-incompatible legislation 25 times. The vast majority of these cases relate either to unusual factual circumstances not originally considered by Parliament or technical hitches in legislative schemes. As Lord Phillips argued, it is far better for these unforeseen legislative wrinkles to be ironed out by s.3 than s.4. Instead, by far the commonest use of s.3 is providing “support” for conclusions already reached at common law. This generates ambiguity, but hardly threatens the constitutional order.
Accordingly, s.3 does not need radical reform. Instead, it should be amended to clarify that the interpretive obligation applies only if the statute/common law cannot produce an HRA-compatible reading. This would ensure s.3 is only used when strictly necessary, so realising the considerable potential of the common law as a vehicle for rights enforcement. These benefits would be compounded by use of a centralised database recording where s.3 was used, coupled with an enhanced role for the JCHR in reviewing these cases. Having made these changes, there would be no need for parallel reform of s.4, which functions well.
cls.8 and 20 BoRB contain reforms of a different category. Rather than addressing the HRA’s broad framework, they seek to alter the detail of certain individual Convention rights and “micromanage” their effect with the aim of limiting their reach. For example, cls.8 and 20 radically curtail Article 8’s scope in deportation cases. Analogous effects arise from cls.4-5 and others. Even more egregious than these proposals, cl.15 BoRB introduces a novel permission stage that draws a spurious distinction between “significant” and “trivial” cases. Creating as they do an ECHR-minus model that breaches obligations under the ECHR, these reforms should be rejected wholesale.
That said, in complex “multipolar fundamental rights situations” where the rights of two or more private litigants must be weighed against each other, domestic courts may reach wholly legitimate conclusions that nonetheless differ from Strasbourg’s and so risk breaching international law. It may therefore be asked if truly bringing rights home means leaving the ECHR (something not contemplated by the BoRB) and instead legislating to enshrine an ECHR-plus approach that nonetheless allows divergence in genuinely grey areas. The proposal deserves consideration, but should ultimately be rejected. While it is not clear that joining international rights treaties improves rights outcomes, such a high-profile exit would undoubtedly embolden rights violators and damage our international standing. A better approach would be to rekindle the spirit of the Brighton Declaration and push for further reform while remaining a party to the ECHR.
In conclusion, while the HRA can be considerably improved, radical changes would ultimately be counterproductive. Instead, the targeted reforms suggested in this essay would produce outsized improvements to the functioning of British human rights law.
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