HRA 1998 Evaluation and Reforms

Section One - incorporation into UK law

• The act is an ordinary act meaning it is not entrenched and can be changed by future parliaments; This means rights are limited

• Some suggest it should be entrenched to fully protect rights but there is currently no mechanism in the UK that would allow for this

British Bill of Rights

• Proposed by the conservative government in 2022

• Aimed for better protection of UK citizens, prevent over powerful unelected judges and weaken rights which they felt were being abused

• Maintains the existing rights but also: strengthened freedom of expression, provided guarantee of juries in serious criminal cases and limited article 8 making deportation easier

• Bill was not passed as Johnson was replaced by Truss who did not carry on with the bill

Section 2 - precedent

• Discursive relationship between courts and ECtHR means human rights law is developed with an understanding of the UK legal system

• ‘Take into account’ does not necessarily mean follow meaning the court can depart from ECtHR decision which questions the protection of rights

• British Bill of Rights = suggest that the Supreme Court became the final decider in HR law not the ECtHR, suggesting changing the phrasing ‘take into account’ to have the ‘right to discard’ ECtHR decisions

Section 3 - statutory interpretation

• Ensures the law is up to date as judges are given wide powers to ensure the statutes comply with the convention of rights which would have been parliaments intention when passing the law

• Could be argued to undermine parliamentary sovereignty as acts are not being followed word for word and its not possible for courts to know the exact intention of parliament

• Power of courts being able to read between the words creates uncertainty in the law

• British Bill of Rights = removed this right to protect parliamentary sovereignty and prevent judicial law making

Section 4 - declaration of incompatibility

• Respect parliamentary sovereignty as the decision is not legally binding and parliament are not obliged to amend any legislation

• Places considerable pressure on the government to change the law because it is reported the government are failing to protect rights

• British Bill of Rights = declarations would be scrapped with the advisory role being returned to parliament, aimed to reduce political pressure on politicians to amend acts

Section 10 - response to declarations

• Ability of MP to change the law meanings HR violations can be amended quickly

• These orders are rare and used only for technical fixes

• Parliament is not required to act on a s4 order meaning it is ineffective

• British Bill of Rights = got rid of thus idea meaning any potential HR violation could only be addressed by parliament

Section 14 and 19

• Ministers being able to derogate in times of emergency recognises the balance between the individual and the wider society

• New bills having to be declared compatible meanings MPs cannot say that did not realise the act would adversely affect rights

• s19 creates political pressure not legal obligation meaning the convention can be violated by parliament

Section 6 - who is bound by HRA?

• The term public bodies is open therefore can lead to expensive legal debate as to whether a service is a public function or not

• British Bill of Rights = proposed keeping s6 the same

Section 7

• Requirement of locus standi means that the cases will be limited to those with true standing and who have been affected

• Undermines the nature of human rights law as the government should not be breaching any rights and minorities may not be in the position to bring in claims

• British Bill of Rights = proposed stricter requirements for standing and that claimants would have to show ‘significant disadvantage’ before a claim was brought