Controversy around the Human Rights Act 1998




This article will cast light on five main takeaways from the proposals suggested by the UK government in its opposition to Human Rights Act 1998 as an attempt to restore public confidence in the UK legal system. The primary objective is reinforcing freedom under the rule of law and signifying separation of powers by drawing a more prominent boundary between court and parliament.


Genesis

The Conservative party has opposed Human Rights Act 1998 ever since its enactment. The history of UK politics exemplifies the party's resistance towards fully approving the Act. General elections in 2015 created a buzz with Prime Minister David Cameron's remarks, 'I will fix the human rights mess' while addressing the nation about restoring human rights reputation in the UK. A concrete step was taken in 2015 when the Government pledged to abolish and replace the Act. The uneasiness grew after Brexit, making the repeal inevitable.

In December 2020, UK Government announced Independent Human Rights Act Review (IHRAR) as s step towards the repeal, chaired by Sir Peter Gross. In response to the review's final report, the Government laid its proposals to reform through a published consultation paper, 'Human Rights Act Reform: A Modern Bill of Rights A Consultation to reform to Human Rights Act 1998' on 14 December 2021, informed by work of IHRAR. The consultation paper considers the need for a striking balance between liberty and public interest, rigorous judicial interpretation, and the effect of ECHR's presumptive authority on the domestic courts. The intention was to distance the UK from European ideas of Human Rights and widen the scope of common law ideas and parliament.


Takeaways from the devised proposals

The prospective overhaul consisted of some unexpected provisions receiving a diverse range of opinions from scholars and academics worldwide.

The major provision stresses the over-reliance on section 2 of ECHR. Section 2 puts immense pressure on domestic courts to follow European case law depowering UK common law traditions and undermining the supremacy of the UK Supreme Court. The suggested proposals would aim to replace section 2 to correct the presumptive authority of ECHR by ensuring courts follow UK case law and 'may' take into account judicial decisions of other jurisdictions.

Secondly, the Bill emphasises press freedom by limiting interference with the press over privacy claims. It attempts to correct the imbalance between Article 8 (right to respect for one's privacy and family life) and Article 10 (right to freedom of expression) under ECtHR by prioritizing the latter. The suggestion is driven by Meghan Markle's case, which gave undue weightage to privacy.

Moreover, a 'right to trial by jury' was suggested in the Bill to supplement the British flavour and make it less European. The suggestion derives from the historical significance of the UK legal system tradition to restore public confidence in Human Rights by limiting the number of spurious cases.

Another proposal in consultation power thrives on providing the UK courts a greater clarity while interpreting fundamental rights through filtering spurious and unmeritorious cases at earlier stages. This was proposed to be achieved by adding a 'permission stage' for human rights claim, where Claimant will have the burden to establish that had suffered 'significant disadvantage.' This suggestion is aimed to put an end to misusing of human rights.

Finally, a provision that met criticism introduces a 'specific category of individuals to escape deportation on humanitarian grounds.' This proposal stands in opposition to Article 8 of ECHR, which is based on the right to respect for family life. The consequences would make it harder for foreign national offenders to rely on Article 8 and escape deportation.


What is changing?

The UK government claims that suggested proposals commit to staying with ECHR and will change nothing but the only courts' interpretation of the law. However, it is contended that the reforms are needed solely to strengthen the UK Supreme Court's role as the ultimate arbiter of Human Rights with greater certainty and authority than now. It isn't easy to assess the impact's substantiality on the UK's legal system, given that Government has refrained from the withdrawal from ECHR.